The European Court of Human Rights is Fit for Purpose.

Ken McDonald’s opinion piece in the Times today is quite simply wrong. Far from measures being needed to reduce the reduce the scope of its jurisdiction, the ECHR is one of Europe’s success stories.

McDonald’s main argument as to why the court is “no longer fit for purpose” is that is now has a backlog of 150,000 cases growing at 20,000 per year. While this is not perhaps an indication of an organisation fully in charge of its workload, it does show just how popular the court is with the people of Europe. Surely it is obvious that the solution to an oversubscribed service is to expand the service rather than curtail it? Surely that would be more beneficial than restricting people’s access to justice because the violations of their human rights weren’t really “serious enough”?

 Politicians and journalists frequently complain about the democratic deficit of the EU and how the structures of governance are not accountable to the people. The ECHR however, is actually a body that is reachable by all citizens of the EU and its role is to respond to their most fundamental of needs, the upholding of their human rights.

 This leads me to McDonald’s next argument, that the court is now overstretching itself in terms of the breadth of cases it is willing to hear. What he forgets, however, is that much as the rights to not be killed, tortured or imprisoned without trial are extremely important human rights they are not the only ones. The European Declaration of Human Rights is far more expansive than that. In order to properly uphold the law of the EU, the Court is actually obliged to consider all cases brought to it in which the claimant believes their rights to have been violated according to that law.

 Finally, the author also argues that the ECHR is in the impossible position of trying to apply the same law to former Soviet dictatorships as to the ‘nice, friendly’ countries of the West. This is a gross misrepresentation of the state of affairs within Europe. While the UK certainly has better human rights standards than other parts of the continent it is by no means exemplary. Consider for instance the deporting of victims of trafficking, the discrimination against same-sex couples and the slow erosion of civil liberties in recent years. The number of cases brought against the UK government in the ECHR (443 judgments since its creation) shows that the UK is also in need of an impartial overseer in matters of human rights protection.

Human Rights are dictated by moral reasoning – on this point Europe has reached legal agreement. It is right that all of Europe should be judged by the same standards of justice. That is the purpose of the ECHR and one for which it is fit.

1 Comment

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One response to “The European Court of Human Rights is Fit for Purpose.

  1. Whilst I mostly agree with your analysis and description of the European Court of Human Rights, I do think that further reforms are needed. Especially in not allowing duplicate cases to be submitted by different people with little or no alteration of the facts of the case (as you quite often find in cases from Russia). Many thousands of cases are submitted to the Court every year that contain no material evidence for a breach of the Convention, yet, judges and the Court have to evaluate and rule on them.

    You can only appreciate the issues the Court faces if you understand the relationship between the Council of Europe and ECHR and Russia. In 2010, ‘Protocol 14’ (which allows for some streamlining of the system) was finally ratified by all members, including Russia. This has allowed an increase in the pace of dealing with cases. I am confident that in future years, you will see a significant drop in the backlog and new cases which are deemed admissible.

    The single largest number of cases filed at the Court every year come from Russian citizens – as I say, many files are duplicates of already submitted applications and in many cases they either do not demonstrate a significant new breach of human rights or are applications for a decision on an issue that has already been decided. The new Protocol will allow the Court to make a judgment on the admissibility of cases where applicants fail to demonstrate that they have suffered “significant disadvantage”. It will also allow the Court to group together similar cases.

    I would not wish to remove the possibility of citizens applying directly to the Court, however, some mechanism needs to be agreed so that Court officials may reject obviously deficient applications from the start and therefore not cause delay to genuine cases. I also think it should be possible to transfer a case to a national court for a first hearing to determine if there has been a material breach.