Sunday, 27 October 2013

Do we need the European Court of Human Rights?

The European Court of Human Rights has a talent for making decisions that rub against popular opinion. It recently decided that murderers and rapists who serve a prison sentence in Her Majesty's Prisons should be given the right to vote. Apart from the practical dilemma this poses to any electoral committee (how to grant prisoners the vote without skewing electoral balances in those constituencies where the prisons are), the main objection to the Court's decision has always been that it explicitly overruled a parliamentary vote. In other words, judges of the European Court did not take into consideration the existing and approved law of the land but decided to make law themselves.

Time to convert this into a secondary school? The ECHR at Strassbourg

This is when critics of the Court are often reminded that any type of 'international court' that is placed above national jurisdictions acts as a last resort for people who fail to get their right through the national judicial systems. The argument goes that without institutions such as the European Court of Human Rights or the International Court of Justice at Den Haag, there would be no right of redress for people who have been victims to persecutions, injustices at the hands of governments or systematic violations of human rights.

Yet, the analogy between the Court of Justice at Den Haag and the ECHR is flawed. The International Court of Justice only acts in those cases where national judicial systems cannot act. The main example would be the case of Liberia where the newly elected government granted the ICJ the right to try its former president Charles Taylor because the national judiciary was not in a position to organise an effective and fair trial following the upheaval of the civil war and the deep political polarisation in the country.

The European Court of Human Rights however receives its legitimacy from the Convention of Human Rights, which has become UK law only recently. It thus depends on an act of parliament and as such it must defer to that parliament's decision in its own work. The judges at the ECHR however seem to have scant regard to national law as its latest decision about the release of ETA prisoners in Spain demonstrates.

It may be time to call time on the legal vandalism of the ECHR. Europe can surely manage without it.

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