January 26, 2012
On 25 January 2012 David Cameron, the British Prime Minister, gave a speech during the meeting of the Parliamentary Assembly of the Council of Europe. The speech was on one hand full of compassion over the raising backlog of cases pending before the European Court of Human Rights (ECtHR), on the other hand it stressed the need to proceed with reforms. In his speech we can read that “national governments ‘margin of appreciation’ – which allows for different interpretations of the Convention – has shrunk… and that not enough account is being taken of democratic decisions by national parliaments … All states agreed that the Court was, in some cases, too ready to substitute its judgment for that of reasonable national processes and all agreed that that was not its role. And when controversial rulings overshadow the good and patient long-term work that has been done, that not only fails to do justice to the work of the Court…”.
The UK Government, chairing the Committee of Ministers, leads the reform of the ECtHR and issues numerous new proposals, which should result in limiting the backlog. Some the proposals raise, however, serious concerns as far as the right of individual petition is concerned (e.g. the “sunset clause “ enabling the automatic striking of cases pending before the Court). One should remember that the right to individual petition is the cornerstone of the Council of Europe human rights protection system. Limiting the scope of the individual complaint would derail the entire system.
It should also be recalled that the UK Government is opposing the execution of several judgments of the ECHR. One example is the judgment Greens and M.T. v. UK, concerning the blanket ban on voting in national and European elections for convicted prisoners in detention. The ECtHR, using the pilot judgments procedure, gave the UK a deadline of six months in order to allow prisoners to vote in elections, or it could face serious consequences. If the UK fails to adopt legislative measure the ECtHR will proceed with 1,500 similar cases that had been registered and were awaiting a decision. The lack of the will to implement ECtHR judgments is also be detrimental to the Council of Europe system.
The dubious reform proposals combined with D. Cameron words addressed to the Parliamentary Assembly, and the lack of the political will to implement ECHR judgments, should be a reason for serious concerns.
Of course, this is not the first time that tensions between Parliament and the European Court have arisen in the UK, or elsewhere in Europe. For example in June 2011 Russia has announced a new legislative initiative to undermine the Strasbourg verdicts domestically. The draft law required the ECtHR judgments to be reviewed by the Constitutional Court for their compliance with the Russian Constitution. More precisely, if the Constitutional Court found the domestic provision that was the legal basis for a contested judgment constitutional, there would exist no obligation to amend that provision or to revise the case at court proceedings. In such a situation, the only remaining obligation would be the payment of the sum awarded by the Strasbourg Court. In the end, however, the State Duma did not adopt the law.
All these examples reflect the negative attitude of certain Governments vis a vis the ECtHR system. They are also a sign of the political dependence of the ECtHR. Until now the Registry and the Court resisted all political pressure. But will the institution be able to uphold their independence if the bad PR spills all over Europe?
Dominika Bychawska-Siniarska, “Europe of Human Rights”
Author : Europe of Human Rights