Bratza: criticism of Strasbourg “not borne out by the facts”

by Carl Gardner on January 24, 2012

In today’s Independent, President of the European Court of Human Rights Sir Nicolas Bratza defends the record of his court, and effectively pleads for more understanding in Britain. The European Court, he says

has been particularly respectful of decisions emanating from courts in the UK since the coming into effect of the Human Rights Act, and this because of the very high quality of those judgments. To take 2011 as the most recent example: of the 955 applications against the UK decided, the court found a violation of the convention in just eight cases.

This is a good point to make, rightly correcting the misleading statistics that have been bandied around on this subject and that have already been taken apart by Adam Wagner at the UK Human Rights Blog.

In fact, Bratza makes a number of very good points. The Strasbourg court’s influence has been overwhelmingly positive, he says, citing issues on which its rulings have been widely accepted such as corporal punishment, homosexuality, the rights of transsexuals and the treatment of child defendants. He reminds us of the court’s role in consolidating democratic reform in central and eastern Europe, and points out that the court’s backlog is not the result of its inefficiency, but of the huge and increasing volume of applications it receives. I agree with almost everything he says.

But he goes on:

Against this background, it is disappointing to hear senior British politicians lending their voices to criticisms more frequently heard in the popular press, often based on a misunderstanding of the court’s role and history, and of the legal issues at stake. It is particularly unfortunate that a single judgment of the court on a case relating to UK prisoners’ voting rights, which was delivered in 2005 and has still not been implemented, has been used as the springboard for a sustained attack on the court and has led to repeated calls for the granting of powers of Parliament to override judgments of the court against the UK, and even for the withdrawal of the UK from the convention.

Bratza does not defend or criticise the Hirst judgment on prisoners’ votes, it’s worth noting – rightly, since it cannot be part of his role as President to debate the merits of any one of the court’s rulings. Fair enough. And I agree with him that the stand-off between British politicians and the court on prisoners’ votes is indeed unfortunate. But this case in particular undermines Sir Nicolas’s contention that

criticism relating to interference is simply not borne out by the facts.

I support the European Court of Human Rights, and am pleased to see Sir Nicolas defend its general record robustly. Most British criticism of the human rights court is wrong-headed and ill-informed. But on some specifics, I’m afraid the facts do bear out the complaint that the court has sometimes been too interventionist.

In the Hirst case and a couple of those which have followed, the court ignored one of its own key legal principles (the “margin of appreciation” it supposedly allows states), preferring to micromanage policy throughout Europe. The same sort of thing happened, I’d argue, in the DNA database case, S v Marper.

If the court can check its own occasional excessive interventionism, it will deserve our respect all the more.

{ 14 comments… read them below or add one }

1 Andrew Watson January 24, 2012 at 13:56

I am not sure how you can defend Marper on the basis of margin of appreciation. The regime in place under Marper was clearly disproportionate as it affected everyone arrested, innocent or guilty, charged or not, adult or child.

What I think is more telling in Marper is that the House of Lords were almost reluctant to even accept that Article 8 was engaged while it was the core of the decision of the ECHR. That suggests a very different view of what the right to privacy actually represents between UK and European judges.

2 Jailhouselawyer January 24, 2012 at 18:59

It is unfortumate that you use the phrase unfortunate to describe the human rights abuse of over 100,000 convicted prisoners denied the vote: “I agree with him that the stand-off between British politicians and the court on prisoners’ votes is indeed unfortunate”!

Minimalising is equivalent to calling gas chambers shower houses!

Democratic reform in in central and eastern Europe, includes the need for democratic reform in the UK. Hirst v UK (No2) exposed the deficiency within the UK. A large section of the public in our “inner cities” are disenfranchised. It beggars belief how many lawyers conveniently ignore this part of the Hirst No2 judgment: “59. As pointed out by the applicant, the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion…”. What part of this clear judgment does Carl Gardner and his ilk fail to understand?

The UK will not be allowed the margin of appreciation to decide who and who is not a human being entitled to human rights, nor will it be allowed the margin of appreciation to fail to abide by Articles 1 and 13 of the Convention. Again, what part of this does Carl Gardner and his ilk fail to understand?

There is no evidence to support the false allegation that the Court has employed “excessive interventionism”. The Treaty of London 1949 clearly refers to Member States coming into harmony on the issue of human rights. The UK cannot be allowed to stay in the past. Either it comes forward in Europe and plays by the rules, or gets out and sinks to the level of a rogue or pariah State.

3 Ben January 24, 2012 at 20:32

It’s a bit much for @jailhouselawyer as a convicted killer to be calling us a “rogue state” for denying him the vote.

If you want to vote, don’t kill anyone. Most of us manage it.

4 Carl Gardner January 24, 2012 at 21:16

Andrew, I agree that the view you take about the extent of interference with article 8 is the key, looked at one way at least. I’m with the House of Lords: I think the interference with privacy in retaining DNA is minimal. I don’t agree with what you say about it being obviously disproportionate: it depends, surely, on how important you think catching criminal is.

But this can also be looked at in terms of the margin of appreciation, I think. At paras. 102-103 of the judgment the Court tells us it applied a narrow margin of appreciation precisely because it saw DNA retention as involving something of fundamental importance to the enjoyment of the right to private life – which as I say, I disagree with. Okay, so we’ve already dealt with that.

There’s another factor here that I think should have come into the balance, though – the relative newness of the technology. Only after decades of applications relating to transsexuals did the Court see the UK as having gone outside its margin of appreciation. Perhaps the Court was too slow in moving from Rees, though Cossey to Christine Goodwin. But with DNA, hasn’t it effectively ruled out the idea of a universal database (which Lord Sedley argued for for instance) before we’ve even properly worked out how useful (or not) DNA evidence might me to us? I think more experience was needed before you could narrow state’s room for policy choice as much as the Court did.

But anyway, even if you allow a fairly narrow margin, it still seems to me that trying to find and convict the serious criminals could still be seen as outweighing privacy here. To decide otherwise, I think you have to (a) think catching serious criminal isn’t all that important in the scheme of things – certainly less important than protecting personal data – this is the point about “obvious disproportionality” we disagree about – and (b) that there’s really no room for disagreement about that. In other words I think the judgment allowed not just a narrow margin, but effectively no margin to disagree.

5 Carl Gardner January 24, 2012 at 21:28

@Jailhouselawyer,

I thought you might comment, John!

You’ve invoked Godwin pretty early on in the discussion with your reference to gas chambers, and to be honest I think it’s absurd to mention gas chambers in the context of this prison votes question.

I don’t see what it’s got to do with disenfranchisement in the “inner cities” either.

As for the judgment, I think I understand it; the difference between us is that I disagree with it.

And it’s not about the UK being allowed to decide who’s a human being, or who has rights, or whether to respect them. It’s about how much margin the UK is allowed when the Court decides whether or not its interference with a right is justified in an individual case. The Court itself in your case said, as I recall, that the UK should be given a wide margin of appreciation in relation to that.

6 ObiterJ January 25, 2012 at 10:11

Marper – one of the things which struck the E Ct HR was just how much difference there was between the retention rules for England/Wales and those for Scotland. By comparison, the English rules seemed to be excessive. Protection of Freedoms Bill will bring us closer to the Scottish position.

Several British politicians have been openly critical of our own Supreme Court – e.g. Theresa May telling the Commons that the government was appalled by a decision involving Convention rights. Thus, it is not just the E Ct HR which they are prepared to attack.

The bottom line seems to be that British politicians have their own agenda – in my view, not a very “liberal” agenda – and they therefore attack any court decision which goes against them. Nothing will ultimately satisfy such people other than withdrawal from the Convention though, at this time, they profess to be in favour of remaining in.

One final thought. Just what message does it send out to those inclined to break the law when the government openly defies a judgment of the E Ct HR Grand Chamber?

7 Jailhouselawyer January 25, 2012 at 10:45

Ben: You are easy to dispatch. The Interlaken process is about applying sanctions to rogue or pariah States to get them to toe the line or face sanctions. If you do not like the UK being likened to a rogue or pariah State, then I suggest you take up the issue with the UN and Council of Europe and EU as they are intent upon tackling human rights abuse throughout Europe and the UK has been flagged up as a failing State. My case and the UK’s failure to amend the law as a result proves the point.

Actually, I am now able to vote. If you took time to read Hirst v UK (No2) you will see that killing someone is not a ground to be deprived of the basic human right to vote. Even the killer of the Israeli Prime Minister was not denied the human right to vote for his succesor. Who better to judged, paid the required penalty by law, than a person who has been judged and is now reformed?

Hi Carl:

And, I expect you would join the affray.

Prison is absurd. I am aware of Godwin’s law. Unfortunately, it does not apply in a context where the Convention was drafted so as to prevent the re-emergence of a totalitarian or authoritarian regime happening in Europe again. The UK is sliding into a dictatorship. The Nazi regime dehumanised to justify the Final Solution. Cameron is attempting to dehumanise convicted prisoners to justify his policy of seeking to decide who and who is not human and entitled to human rights. This policy goes against what the Council of Europe is all about; Human Rights, Democracy and Rule of law.

Within our so-called liberal democracy are states within a State, what I call the “inner cities”, microcosms of society outside, where democracy does not exist. In 1968, Sweden granted all prisoners the right to vote. Sweden has not collapsed as a result of democracy being introduced into prisons. Neither will the UK collapse by implementing this much needed reform.

I am not sure that you do understand the Hirst v UK (No2) judgment. It needs a European law view as opposed to an English law view. In any event, it is one thing to disagree with a judgment and quite another to ignore it.

It is all about the UK seeking to decide who is a human being and worthy to have human rights. There is still within the UK the outdated view that prisoners are somehow less eligible for rights. It is a pity that the Court did not state that actually the margin of appreciation in my case is quite narrow, then the issue would not have been latched onto by Charles Falconer as an excuse to do nothing. Unfortunately by doing so the Court gave the UK an inch and the UK took a mile. In my view the Court should have been less diplomatic. Diplomacy can get in the way of reform. I don’t think I can be accused of being diplomatic 🙂

8 Carl Gardner January 25, 2012 at 10:59

Obiter J,

I’m not sure it’s 100% fair to say the government is openly defying a judgment. It’s true the last government dragged its feet on implementing it. But this government did put proposals to Parliament, but it’s pretty clear it can’t get those proposals through. What also gives me a bit more sympathy with them is that in a sense the goalposts have shifted. If you take a minimal approach to implementation – let’s just do exactly what Hirst and MT & Greens seem to require – then implementation seems relatively straightforward. But the government would rightly be criticised if following that it still failed to comply with the Convention and lost in further cases decided like Frodl and Scoppola. I think it is reasonable to complain that it’s not totally clear what the ECtHR thinks the Convention requires.

Of course you’re right about at least some British politicians. But the fact that there are quite a few rabid, unbalanced Europhobes and that they attack the UKSC too does not mean everything the ECtHR does is right.

Nor does the fact that the Scots have a different DNA system mean that the system in England & Wales is in breach of rights. That’s exactly the sort of unstated reasoning that I think leads the ECtHR into error, and (and this is the big danger) risks seriously narrowing the room for democratic policy-making in Europe. One of the problems they have in America is that it’s difficult for states to innovate, even to achieve important objectives like saving life and even if the public wants them to, because of entrenched constitutional rights that seemed important in the 18th century.

If, relatively early in the life of a technology like DNA, you fix on what you think is the “least invasive” use of it throughout Europe (actually I’m not sure the Scottish system is all that radically different from the English one, but that’s by the way – I’m not sure why it’s enough to make the difference between breach and compliance, unless you set the margin of appreciation very fine) and insist that everyone in Europe has to follow it, you can end up denying all the people of Europe the chance to find out whether a different approach really would catch more criminals, just as Americans are denied the chance to find out whether some gun control policies could save lives. How can the research ever be done? It can’t, if Strasbourg in effect bans it. This is why I’m so concerned that the margin of appreciation needs to be respected on a matter like DNA till we actually know how weighty the public interest is in its widespread use, and not prematurely narrowed down to permit only the Court’s preferred sort of policy in 2008.

9 Carl Gardner January 25, 2012 at 11:23

John (Jailhouselawyer),

I think if you keep pressing your Nazi argument you risk looking more and more absurd. I agree this is a serious issue – but it ain’t Treblinka.

You talk about Britain “sliding into dictatorship” and what Cameron wants – as though denial of the vote to prisoners was a new policy. It’s not of course.

This has nothing to do with “inner cities”. People who live in the inner cities aren’t in prison, and can vote.

Nor is it about whether the UK will collapse. I (this may surprise you, and you may not even believe it) have no great objection to giving prisoners the vote. I simply disagree with the ruling in Hirst that denying it to serving prisoners is a breach of the ECHR.

The UK won’t collapse if 16 year olds continue not to have the vote (I’d like them to) but that doesn’t mean making them wait breaches their human rights – or that Britain claims the right to say they’re “not human” or have no rights.

By the way, by reminding us you can now vote you point out something very relevant to the proportionality of the policy, that I think the ECtHR has thus far given insufficient weight to: that the UK ban on prisoners voting is not permanent, but lasts only as long as they’re in prison. The length of the ban varies according the the seriousness of each individual case, in other words. This is quite different from, and clearly more proportionate than, some other systems in Europe (like I think Italy if I remember right, at least in some cases) where once you’re banned from voting, that’s it for life.

10 Carl Gardner January 25, 2012 at 11:34

By the way, that point about 16 year olds reminds me in a way of the Scottish DNA point I made in response to Obiter J.

If the ECtHR were ever to say (I doubt they will, but who knows) “an age threshold for voting at 16 is permissible, but one at 18 is in breach”, then I think its margin-ometer would clearly be set quite fine.

11 Andrew Watson January 25, 2012 at 13:55

Andrew, I agree that the view you take about the extent of interference with article 8 is the key, looked at one way at least. I’m with the House of Lords: I think the interference with privacy in retaining DNA is minimal. I don’t agree with what you say about it being obviously disproportionate: it depends, surely, on how important you think catching criminal is.

I agree that catching criminals is important but should it really be on the basis that everyone who is ever arrested by the police is in effect a criminal who must then be monitored for life. The DNA database contains more than just a tag which identifies an individual.

It contains a full DNA profile of the individual and while you might not be able to get a huge amout of information from them currently advances in technology are likely to change that. Its also worht bearing in mind that the original system actually provided for the retention of the samples themselves from which far more information could be extracted.

Surely that has to be a fairly serious interference where a person can be compelled to provide that information when they are not charged, or not convicted or even in cases where no crime has in fact even been convicted such as a home owner breaking into their own home because they lost their keys.

While the CC possessed a discretion to remove it certainly seemed that it was never actually used. That could actually make for an interesting FOIA request.

12 Carl Gardner January 25, 2012 at 21:11

Surely that has to be a fairly serious interference where a person can be compelled to provide that information when they are not charged, or not convicted or even in cases where no crime has in fact even been convicted such as a home owner breaking into their own home because they lost their keys.

Okay, but I think it’s interesting that I think this all applies to the Scottish scheme just as much as it does to the one in England & Wales. The only difference is about retention.

should it really be on the basis that everyone who is ever arrested by the police is in effect a criminal who must then be monitored for life.

I don’t see at all how being on the database makes you “in effect a criminal”. No one you meet knows you’re on it, you don’t have to disclose that you are, and nothing ever happens to you just because you’re on it. Nor are you monitored for life or at all, to put it in the slightly pompous language of a pleading. I think this gets to the heart of a big difference between DNA database fans like me and those who are troubled by them like you – you clearly feel this “criminalisation”, but I genuinely don’t understand why.

On possible abuses of a DNA profile, I’m not sure what real-life abuses could happen, but I agree there need to be safeguards. It seems to me that reducing the risk of abuse, rather than the retention and proper use of a profile in itself, is a genuine issue of respect for privacy.

And of course the risk of abuse is the same in Scotland.

I see of course that it’s right to see the Scots system as “less invasive” than the current English one. What’s less easy for me to understand is why people think the line at which something becomes a breach of the Convention just happens to fall at a point somewhere between the Scottish and English systems, so that taking profiles on arrest is fine, retention for three is fine for some totally innocent people, etc., but longer and wider retention is contrary to human rights.

My feeling is that what’s happened here is that a policy preference has been wrongly fixed into case law by means of a misconceived approach to proportionality which goes: “here is a less invasive alternative; therefore the original policy must be disproportionate”. That has to be the wrong approach at least when you don’t know how effective each alternative may be in meeting the policy aim.

13 ObiterJ January 26, 2012 at 17:56

As ever, you make excellent point in response to my earlier comment.

On prisoner voting, I have to accept that Strasbourg has hardly covered itself in glory. However, it is hard to escape the fact that the UK been deliberately trying to find a way to avoid Hirst. Scoppola came along and gave the UK an opportunity to intervene and the government leapt at the chance to do so.

Are we including the present Home Secretary in the category of “rabid, unbalanced Europhobes” – it was she who denounced the Supreme Court’s decision that the absence of a review procedure for sex offender registration breached Art 8 – (e.g. a lifelong requirement imposed during the immaturity of youth could not be reviewed).

I did not really want to get bogged down on DNA profile retention since the matter appears to be largely resolved now. However, I accept entirely that just because the Scots position was one thing did not mean that England and Wales could not have another. However, the ECtHR was struck by the extensive nature of the domestic law enabling retention of profiles taken in connection with many very minor offences etc. It looked disproportionate and looked particularly so when viewed against what other COE States had done. We seem to have people in power in our country who always opt for the most illiberal solution to any particular issue so as to maximise State power. I find this a concern.

Thanks again for the response – as always challenging and interesting.

14 Dadzarmy February 2, 2012 at 22:44

“The United Kingdom is a rogue and pariah state…The Treaty of London 1949 clearly refers to Member States coming into harmony on the issue of human rights”, seems a bit dramatic and superfluous. The issue that most people have with European Court of Human Rights (the “ECHR”) is that it fails to balance the Human Rights of the individual and those in a society. The parah state is never considered in the judgements of the ECHR, yet it bears the cost of these decisions in terms of the risk that their decisions place on us. This is aside of course from the inefficiency of the ECHR which draws out cases for years and by doing so breaches the Human Rights of the applicant. Prison voting, DNA disagreements arise from the failures by the articles to properly balance the rights of the individual and the rights of individuals in society, discussing the merits of these judgements is simply refining within the margin of error. There is also the issue of the ECHR becoming basically a court of immigration cases only, which seem to get funding whilst those who suffer Human Rights abuses outside immigration are largely ignored.

Leave a Comment

{ 1 trackback }

Previous post:

Next post: