Defaming the ECHR Again – A Euro Rights Blog by Richard Edwards

Another day brings yet another salvo against the ECHR and the European Court of Human Rights. This time from the Conservative MP Philip Davies expressing his outrage to the Daily Mail that the ECHR is a ‘charter for illegal immigrants and criminals.’ The article then goes on to list various carefully culled applications that are used to paint the ECHR in an unfavourable light, conveniently ignoring the fact that for every Blake there is a Goodwin or Harman; just as for every unfairly treated Dickson there are neglected children living in pitiful circumstances (Z v United Kingdom [2001] ECHR 29392/95). Such are the tendentious claims of the critics of the Convention. Plus ça change.

These stories and arguments are clearly intended to create an impression that the unworthy are illegitimately enriching themselves with the assistance of a foreign court. They are wide of the mark. Of course it is difficult to feel much sympathy with some applicants who argue claims before the European Court. But it is precisely because they are unlikely to elicit much, if any, public support that we entrust the guarantee of rights and freedoms to independent and impartial courts (Hirst v United Kingdom (No2) [2005] ECHR 74025/01, para 70). And because at the national level their claims were inadequately dealt with they have to seek justice in Strasbourg.

Equally, the total sum of money £4.4 million awarded by the Court as damages is intended to sound large. Rather like a lottery win. But over a fifteen year period this is a modest sum. Indeed, damages awarded at Strasbourg are by definition modest. The damages awarded by the European Court are, for instance, much lower than those awarded by English courts for broadly similar complaints. It is worth remembering that s.8 of the Human Rights Act 1998 requires British courts to apply the Strasbourg approach to damages in domestic proceedings (see R(Greenfield) v Home Secretary [2005] UKHL 14). In fact the European Court is cautious even when awarding damages often holding that it is hard to quantify the exact nature of the damage to be compensated. In cases where the European Court finds a violation of a Convention right it may limit itself to simply declaring that, and award no damages. This is standard international practice. Often this can be unjust. In cases such as Kingsley v United Kingdom [2002] ECHR 35605/97 it is hard to think the Court reached the right decision, as the dissenters point out. In the future, the United Kingdom will continue to face modest liability at Strasbourg. In 2012 there were 3,308 applications to the Court of which only 21 were declared admissible. Hardly a tidal wave of claims leading to a Cardozian nightmare of liability. One further point. In El-Masri v FYR Macedonia [2012] ECHR 39630/09 the Court awarded €60,000 in respect of an unlawful rendition. This pales into insignificance with the out of court settlement agreed by the UK Government with Sami al-Saadi over his unlawful rendition by the UK: £2.2 million.

Even more puzzling is the claim that:

‘ECHR judges are elected, not appointed, by the Council of Europe – a human rights organisation. The judges are chosen among those nominated by governments signed up to the European Convention.’

The judges of the Court are elected by the Parliamentary Assembly from a slate of three candidates put forward by the contracting states of the Council of Europe. This democratic oversight is important, particularly given the historical concerns over the selection processes used in contracting states. Similar scrutiny is, of course, brought to bear by the US Senate when considering Presidential nominations for the US Supreme Court and other federal judicial posts. Are British critics of the Court seriously suggesting that contracting states should have a freehand in deciding who is appointed to represent them?

Equally wrongheaded was the argument, if one can dignify it as such, that the Court is composed of ‘pseudo judges’.  There is nothing false about the judges of the European Court. Quite the opposite in fact. Article 21 ECHR requires that ‘judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence.’ Consequently, the judges are, as might be expected, without exception preeminently qualified to hold high judicial office. Most have practiced law in their home jurisdictions. While many others have held high judicial office before appointment to the Court. One has sat as a judge on the International Criminal Tribunal for Rwanda dealing with cases involving genocide, war crimes and crimes against humanity. Another has served as an Ambassador. And of course many have taught law in universities. Without doubt these people bring great skill, experience and knowledge to their work on Europe’s highest human rights court. Finally, every state may appoint one judge; so the Court is just as ‘foreign’ for every other contracting state.

In short 70% (33/47) had academic backgrounds although only 9% (5/47) were pure academics (Rather like the late and great Bora Laskin, Chief Justice of Canada). But 91% had either been qualified lawyers or judges.  55% (26/47) had held judicial office before appointment to the ECtHR. 53% (25/47) had practiced as lawyers.

53% (25/47) had a foreign element to their education. 8% had been educated in the United Kingdom (excludes UK judge).

A fuller analysis of the background of the judges is available here.

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