A critical appraisal of the ECtHR with reference to the effects of the increased membership of the Council of Europe and the corresponding expansion of the Cour

The European Court of Human Rights: A Critical Appraisal

  1. Introduction

The European Court of Human Rights (ECtHR) was created for the purpose of putting method and order in the hearing of human rights complaints from Council of Europe member states. It’s mission is to enforce the European Convention for the Protection of Human Rights and Fundamental Freedoms, ratified in 1953.1 There have been beneficial changes as an outcome, and one of this is that countries found to have been amiss in their obligations under the Convention are duty bound to make their laws comply.2  On the other hand, there are many criticisms to the ECtHR’s procedures and jurisprudence with the member state’s national laws in tow.

To date, the Court  is  flooded with cases too numerous for normal load, some of which were said to take up to five years before being heard and there is much backlog. 3 For example, according to the Human Rights Information Bulletin, 4  between November 1, 2003 and February 29, 2004 the Court dealt with 7315 cases, of which 6255 were declared inadmissible.5

Along the principle of justice being denied when delayed, a group was commissioned to study how to improve the efficiency of the Court, and this resulted in an amendment to the European Convention for the Protection of Human Rights and Fundamental Freedoms or Protocol 14.6

Protocol 14 made a number of changes, subject to universal ratification by all Council of Europe member states.  One of these is that a single judge can decide whether a case is admissible where before, three judges decided. Moreover, the Committee of Ministers can ask the Court for an ‘interpretation’ of a judgement to help determine the best way a member state may comply with it. 7

Problems of inadmissibility and repetitions of cases was revealed at the European Ministerial Conference on Human Rights in November 2000.8 By 2003, some 60% of the 703 judgments given by the Court concerned were repetitive cases, and in the same year, 96% of applications considered were declared inadmissible.9  

Counter reviews on the jurisprudence and procedures of the ECtHR may be expected from member states due to challenges emanating primarily from the task of having to deal with multi-cultural dimensions including religion, and there are several.

As posed by Kirby, 10 it is the business of those in the legal field to strive for justice and ensure that there is harmony between the rules of law and the needs of justice. This means that what obtains with the ECtHR is largely the business of human rights lawyers. “Practical human rights achievements are secured, in large part, by political agitation, community activism and good lawyering,” Kirby said. In reports about  the ECtHR, or on topics that have to do with it, “lawyers have skills in legal analysis, in sifting facts, in expounding the applicable rules, finding infractions and in presenting observations about unacceptable practices,” and it is time to use them, he said. Goldston11 referred to this as social change litigation.

  1. II.ECtHR and Advances

One of the advances made in the role of ECtHR as reported by Kirby 12 is in obliging the member states to align their laws into conformity with the European Convention on Human Rights. As an example, in Norris v Ireland, following a like decision in Dudgeon v United Kingdom, the ECtHR found that Senator Norris, by being penalized under Irish criminal law, making him liable to punishment for consensual adult homosexual conduct in private, had his rights violated with respect to his private life. As a result, Ireland reformed its criminal law in 1993, abolishing old offences and setting a non-discriminatory age (17) for lawful sexual conduct. 13

Article 3 and Article 5 are among those being reviewed by nation states with vigilance in the wake of renewed interest for human rights by citizens. Article 3 says, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.14 Article 5 is longer and involves the right to liberty and security of person, and contains provisions on rights regarding arrest.15

A listing of the activities of the Council of Europe anti-torture committee(CPT) shows that for the last half of 2005, they have been visiting places like Malta,  the Russian Federation, the United Kingdom,  Greece, Norway, Ukraine, United Kingdom ,  Moldova, Germany, Turkey, and Spain.. During these times too, they have published reports on Georgia, Austria, Malta, and Turkey. 16 These activities show promising interventions for international peace.

III. ECtHR and Drawbacks

  1. Admissibility criterion. The Amnesty International (AI) takes to task the proposal to add a new admissibility criterion as spelled out in new protocols. Particularly, AI is concerned that the provision to include a judge elected on behalf of the respondent state, if that state has contested the application of the expedited procedure, raises serious issues about the independence of the Court.17 According to AI, this is out of place in a human rights treaty.
  2. No elaboration. On the other hand, the parliament of the United Kingdom calls this new admissibility criterion “the most controversial reform,” and questions the “significant disadvantage” part allegedly because of what it could possibly do to the right of the individual petition.18 As provided, the Court shall declare an application inadmissible if it considers that: “the applicant has not suffered a significant disadvantage….” What is meant by a “significant disadvantage” is not elaborated by the Protocol, however, and the Court has to establish criteria on a case-by-case basis.19

The court then may expediently lean on the general “living instrument” approach to the Convention where present day conditions may need to be considered.  There are no fixed parameters here, an aspect that should not be taken negatively but instead taken as an opportunity to grow. Normally, where there are case-to-case situations, the chances for errors are more on the delicate balance than is expected in fixed situations. Kirby,20  is hopeful for UK and its lawyers, however, as he says –

“….It will fall to United Kingdom lawyers and United Kingdom judges in the first instance, to give meaning to fundamental human rights. They will be obliged to approach the Convention as a “living instrument” to be “interpreted in the light of present day conditions” This is an exciting moment for the law of the United Kingdom and a big challenge for its judges and lawyers. One of them has expressed quite bluntly the need for a radical change to the approach to statutory interpretation; another to the need for a change of the legal culture.

  1. Country representation. The ECtHR at present is composed of 46 judges, equal to the number of Council of Europe member states. Absent is a requirement that each state be represented, nor are there limits to the number of judges belonging to any nationality. Further, rather than as representatives of any nation, judges are assumed to be impartial arbiters.21

In fairness to the ECtHR, country representation is not a guarantee for true representation, nor is representation a guarantee for justice more than cerebral work in fairly thought of cases. This reasoning may have been considered in the aspect of representation.

  1. Interpretation. There are claims that the ECtHR’s case law has interpreted the notion of “private life” in a fairly broad, open-ended way.22 With respect to Article 8(1), ECtHR case law is deemed confusing because it does not always specify elements of practices which constitute “interference.” 23 Moreover, it was found out that retaining information for long periods do not offer the best solution for law enforcement work and make its work more effective. 24
  2. Lacking understanding for national culture. With a gargantuan management scope in having to attend to multicultural dimensions, the ECtHR at times gets the flak from various groups. For example, Tore Lindholm 25 claims the Court failed to respect Leyla Sahin’s (In: Leyla Sahin v. Turkey) dignity and freedom as a person for the Court’s ignorance of Islam and Islamism. He declares that it has “a predisposed attitude to Muslims under its jurisdiction” and takes the Court to task for its “shoddy reasoning of judgement,” and continues on –

“If the European Court of Human Rights is earnest about spotting potential threats to democratic order and to the rights of others arising from Islamism in Turkey, then it should apply pertinent distinctions between liberal and fundamentalist (or illiberal) Islam- isms, make each step in its argument explicit, and base its Judgment on well-attested and specific evidence, so as to forestall another Judgment that may undermine even-handed protection of freedom of religion or belief under the entire jurisdiction of the Court.” 26

  1. Race discrimination limited. Many cases of racial discrimination are said to involve indirect discrimination, where the application of a rule has a different effect on a particular racial group.27 To Goldston’s 28 view, although the question has not been conclusively decided, the European Court of Human Rights has implied that indirect effect cases may not amount to racial discrimination.
  2. Conclusion

For all that the ECtHR stands for, in the final analysis, it still has gone a long way in making litigation faster and fruitful.  Some governments are not protective of their citizens who may have access to this court outside their country that may in the end provide justice. On the other hand, in the midst of countries having contrarian views on how the ECtHR has handled their cases, it can be seen how law might address issues in the person of lawyers “willing to break the mold.” 29

Earlier, Goldstone,30 batted for lawyering for social change that must by example strive to introduce changes in the midst of international laws being taken to task –

This means acting as if judges were independent, did know and relied on comparative and international case law, and had the courage to vindicate individual rights in the face of public criticism and state authority. It means citing cases from the European Court of Human Rights in domestic courts, seeking remedies judges have the power – but not the custom – to sanction, and exploiting the positive effects of litigation outside the courtroom – in educating the public, focusing attention on injustice, and mobilizing support for constructive action. In short, it means acting as if the rule of law already existed, and by doing so, challenging others – lawyers, judges, and citizens – to do so as well.

This is the same challenge hurled to lawyers and lawyering by Kirby as earlier discussed. Before the steps of the legal profession then stands the duty of lawyers to make significant contributions. In many more ways than one, the ECtHR and its issues are a fertile laboratory to test one’s mettle.

End Notes

1 ‘European Court of Human Rights building in Strasbourg.’ Measuroo.com, December 23, 2005, Available at: http://www.measuroo.com/Acr-E/ECtHR.php

2 Kirby, M. ‘Educating the legal profession in human rights – practical or pie in the sky?’ Speech, High Court of Australia Publications, International Bar Association, General Practice, 25th Anniversary Conference. Boston, USA, June 25, 1999. Joint Session committees 3,4,6,8,10,14,17 & 19. December 22, 2005, Available at: http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_iba2june.htm

3 Measuroo.com (n.d.)

4 Issued by the Council of Europe

5   ‘Amnesty International’s Comments on the Interim Activity Report: Guaranteeing the Long-Term Effectiveness of the European Court of Human Rights,’ web.amnesty.org, February 1, 2004. December 22, 2005, Available at: http://web.amnesty.org/library/index/engior610052004

6 Ibid.

7 Ibid.

8 ‘Reform of the European Court of Human Rights,’ December 22, 2005, Available at: http://www.coe.int/T/E/Human_rights/ECHRReform.asp

9 House of Lords/House of Commons Joint Committee on Human Rights Protocol No. 14 to the European Convention on Human Rights. First Report of Session 2004–05, London, www.publications.parliament.uk. December 8, 2004. December 23, 2005, Available at: http://66.102.7.104/search?q=cache:odeeTNWgIecJ:www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/8/8.pdf+protocol+14+ecthr&hl=tl

10 Kirby (1999)

11 Goldston, J.A. (2003). ‘Race discrimination litigation in Europe: problems and prospects.’ Roma Rights Quarterly. European Roma Rights Center (ERRC), December 25, 2005, Available at: http://www.errc.org/cikk.php?cikk=1566. [James A. Goldston, a graduate of Harvard Law School and former Assistant United States Attorney, has been Legal Director of the ERRC since January 1997].

12 Kirby (1999)

13 Ibid.

14 http://www.hri.org/docs/ECHR50.html

15 Ibid.

16 ‘European Committee for the prevention of torture and inhuman or degrading treatment or punishment,’ Council of Europe anti-torture committee (CPT), www.cpt.coe.int. December 22, 2005, Available at: http://www.cpt.coe.int/en/

17 ‘Human rights Instruments,’ Amnesty International Press release, web.amnesty.org. April 24, 2004. December 23, 2005, Available at: http://web.amnesty.org/library/Index/ENGIOR300122004?open&of=ENG-375

18 www.publications.parliament.uk, December 8, 2004

19 Ibid

20 Kirby (1999)

21 Measuroo.com (n.d.)

22 Laurant, C. 2003, ‘Data Retention and Privacy.’ CTOSE Conference {5/8-9/2003} EPIC. December 25, 2005, Available at: http://www.ctose.org/info/events/workshop-8-9-may-2003.html [Laurant is policy counsel, EPIC].

23 Ibid.

24 Ibid.

25  Lindholm, T. ‘The Strasbourg Court Dealing with Turkey and the Human Right to Freedom of Religion or Belief: A Critical Assessment in the Light of Recent Case Law (Leyla Sahin v. Turkey),’ June 29, 2004, Norwegian Centre for Human Rights, University of Oslo, December 21, 2005, Available at: http://www.strasbourgconference.org/papers/Lindholm%20Strasbourg.pdf

26 Ibid.

27 Goldston, J.A. (2003).

28 Ibid.

29 Ibid.

  1. Goldston, J.A. (2003)

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