Is the European Court of Human Rights fit for purpose?

The South Ossetia conflict has shown up the ECHR's problems. Picture: Getty
The South Ossetia conflict has shown up the ECHR's problems. Picture: Getty
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The European Court of Human Rights risks becoming a rich man’s playground, says Andrew Tickell, while letting down the poorest, most vulnerable in society

In 1994, Celal Bulut, a 44-year-old decorator from south-east Turkey, came home from his work for lunch. As he entered his garden, five people who had followed him opened fire. Bulut died instantly.

Security forces appeared on the scene within minutes but made no effort to pursue or identify the perpetrators. Instead, the soldiers ransacked his house while his body lay outside. They took no photographs. Witnesses were not questioned. No post-mortem was conducted. Instead, the dead man’s house was abandoned to his family in disarray. Despite several attempts by his wife, Siti, to contact the authorities, no prosecutions followed.

By 2001, Siti had abandoned all hope of achieving justice in Turkey and applied to the European Court of Human Rights in Strasbourg as her last hope. Her case was rejected as ‘out of time’, a fate shared by the vast majority of applications the court declares inadmissible and refuses to examine further every year.

On this side of the Channel, the court has been subjected to a sustained critique by a Eurosceptic press and Tory politicians. “Europe’s war on British justice” is a yarn that stars “unelected Euro judges” up to mischief, meddling in our jurisprudence and imposing their eccentric, continental sense of justice on our sturdy British courts, rich in the attributes of common sense and knowledge of the world.

Last year David Cameron pushed for reforms that would see the court reject an even greater number of cases, while his Lord Chancellor, Chris Grayling, denounced the court’s excessive “interference” in the UK’s internal affairs.

If you take all this too uncritically, you could be forgiven for thinking the hyperactive European Court enjoys nothing more than setting British judges to rights on the proper interpretation of the European Convention and the human rights it protects. You might expect to find evidence that Britain is an outlier state, more likely to lose its cases in Strasbourg than other jurisdictions.

This victim-fantasy bears no critical scrutiny, but it is worse than a myth. It is a story that serves to promote a reform agenda that will make it still more difficult for ordinary people to access the court and achieve justice.

In fact, the overwhelming majority of applications sent to Strasbourg already fail. Annually, around 97 per cent are rejected, like Siti Bulut’s, for failing to meet admissibility criteria. Some of these criteria are formal in nature – time limits, exhaustion of domestic remedies – while others fall after the exercise of discretion on the part of the court’s bureaucrats and judges. In 2011 alone, the Court knocked 50,677 cases off its docket in this way. Of the three per cent of cases that make it through the stringent filtering exercise, in 84 per cent the court finds the respondent state has violated fundamental rights.

The United Kingdom, in fact, achieves a far more favourable level of success in its litigation. In the half century between 1959 and 2010, the court handed down 462 judgments respecting the UK, of which 279 made at least one finding that the Convention had been violated. At 60 per cent, that is 24 per cent lower than the average rate of defeat across all states.

Forty-two of the Council of Europe’s 47 member states lose a higher percentage of cases than the United Kingdom. If we factor in the huge volume of prospective litigation the court declares inadmissible, the UK faces defeat in 1.8 per cent of its Strasbourg cases.

Perceptions of interference may, of course, be qualitative as well as quantitative. Voting rights for prisoners, for example, is a legitimate matter of political controversy, but the idea that Strasbourg is singling out Britain for more systematic scrutiny than other states bears no analysis whatsoever. There is no war on British justice.

There are, however, intractable conflicts within the court’s jurisdiction, which now extends across most of the Balkans to the eastern border of Russia. Conflicts, such as the 2008 war in South Ossetia, generated thousands of applications, many of them assembled without legal assistance. Turmoil in Chechnya, tensions in the Kurdish regions of Turkey, widespread discrimination against the Roma across Europe have all generated cases the Court must examine, even summarily.

The bureaucratic pressures posed by this mighty case load cannot be underestimated. The court’s jurisdiction expanded exponentially during the 1990s with the accession of a large number of populous post-Soviet republics and was crowned by Russian ratification of the European Convention in 1998.

No official statistics on their numbers are published, but anecdotal evidence suggests a substantial majority of applications from some states are made without the benefit of legal advice. The institution groans under the weight of its correspondence, with hundreds of new letters arriving daily: everything from model briefs to handwritten testimonials, documents and copies entrusted to old shoe boxes, and clothing, stiff and stale, pebbled with bullet holes.

The court’s backlog now stands at 150,000 unexamined cases. Remarkably, this figure actually represents significant progress compared with past years.

Such efficiency gains are not without their costs, however. Most applicants now receive the tersest possible statement of reasons for the rejection of their case, which characteristically contains no substantive legal analysis whatever.

In practice, most admissibility decision-making now falls to junior bureaucrats, with judges formally taking decisions on the basis of brief notes written by Registry lawyers, without analysing case files for themselves. Decisions are taken, often in bundles of tens or even hundreds at a time. There is no appeal.

Chris Grayling argues that the European Court has lost its way, and has corrupted the vocation the convention’s framers envisaged for it after the Second World War. If his vision of excessive interference is without merit, European governments’ plans to erect further bureaucratic hurdles to trip up applicants risks disproportionately affecting the most vulnerable and resourceless, whose basic rights are most in peril.

It would also be a corruption of its functions for Strasbourg to become yet another rich man’s playground, with wealthy litigants like Max Mosley free to pursue nice points of law about the scope of privacy rights, while an increasing number of important applications are junked on bureaucratic grounds.

The cause of fundamental rights across Europe cannot be served by multiplying the number of applicants like Siti Bulut, whose human rights have been grossly infringed, but who struggle to navigate the court’s complex and often unpredictable procedures, while the pleadings of the wealthy, expertly composed by leading legal professionals, dominate its docket.

Human rights draw their intellectual justification from their universality. They are the rights of the rich and the poor, the rights of the citizen living in a more-or-less just and free society, and the rights of souls bending under the yoke of tyranny, the rights of those with lawyers, and without them, of the literate and the illiterate.

Wily administrative games may temporarily get Mr Grayling off your back and hack back your caseload, but they will do little to realise human rights that are practical and effective rather than theoretical and illusory.

• Andrew Tickell is a doctoral researcher at the Centre for Socio-Legal Studies, University of Oxford