The European Court of Human Rights
First established in 1959, the European Court of Human Rights has been described as the “Conscience of Europe”, designed to guard against a repetition of the appalling crimes of the Second World War. Now, in an age in which human rights are much more prominent, does Europe still need a collective conscience? If so, is the ECtHR still best placed to provide it? Should human rights be enshrined by supranational conventions, or does this have the potential to violate the constitutional principle that Acts of Parliament cannot be set aside by the Judiciary?
Click on the icons below to read our authors' analyses of these questions.
The European Court of Human Rights. What is it exactly? When and why was it formed?
The Council of Europe was set up in 1949, after the end of a war which tore Europe and the world apart. Its mission was to protect human rights, the rule of law and to promote democracy across Europe. In 1950 the Council of Europe created The European Convention on Human Rights and Fundamental Freedoms (ECHR). That Convention created a court, made up of member states and based in Strasbourg, France.
What is its role?
Its role is simple but challenging: to uphold The European Convention on Human Rights. The Convention lays down how it is to function. It contains a list of the rights and guarantees which the member states have undertaken to respect:
Freedom of expression
Freedom of thought
Freedom of conscience
Freedom of religion
The right to an effective remedy
The right to the peaceful enjoyment of possessions
The right to vote
The right to stand for election.
The right to life
The right to a fair hearing in civil and criminal matters
The right to respect for private and family life
The following, in particular, are prohibited:
Torture and inhuman or degrading treatment or punishment
Arbitrary and unlawful detention
Discrimination in the enjoyment of the rights and freedoms set out in the Convention
Expulsion or denial of entry by a member state in respect of its own nationals
The death penalty
The collective expulsion of aliens
What role did the UK play?
Sir Winston Churchill called for a "Human Rights Charter" in the aftermath of the Second World War. He argued for a sense of common values, and the Charter being “guarded by freedom and sustained by law”. He wanted to ensure that “people owned the government, and not the government the people” in his speech at The Hague in 1948.
On 4th November 1950, the UK was one of the first nation states to sign the ECHR. It had played a significant role in crafting the Convention, with one of the key writers of the ECHR being the British lawyer and Conservative politician David Maxwell Fyfe, who went on to become Home Secretary and later Earl of Kilmuir.
What commitments do governments make?
Governments that want to join the Council of Europe must sign up to the ECHR and make a legal commitment to protect the ECHR rights of all people within their country. Today the ECHR protects 820 million citizens in 47 member states, ensuring standards of basic human rights for us all.
Who are the judges and how are they chosen?
There are 47 judges: one for each member state party to the Convention. Judges must be of high moral character and either qualified for appointment to high judicial office or legal experts. The first British judge, Lord McNair was also the first President.
The judges are elected by the Parliamentary Assembly of the Council of Europe; they are not appointed in the way that, say, English judges are. There are two phases to the election process: Firstly, there is a national selection procedure, in which each member state chooses a list of three qualified candidates. This is followed the election procedure undertaken by the Assembly in Europe. Parliamentarians assess the qualifications of the three candidates before voting to decide which one should become a judge.
The judges hear cases as individuals and do not represent their member states’ interests. They are independent and must demonstrate their impartiality.
Who makes the decisions?
The 47 member-state judges, elected as outlined above, make the decisions. The Court’s judges sit in their individual capacity and neither represent their member state nor applicants. In dealing with applications, the Court is assisted by a Registry consisting mainly of lawyers drawn from all the member states.
So much for its structure and history. Perhaps the key question when thinking about the Convention and the ECtHR is this: Has western civilisation arrived to the point that we do not need an independent "oversight" human rights court any more?
History has proven that governments, from time to time, try to override legal protocols and processes that have been established to protect citizens at home and abroad. They attempt to do this either by using extreme examples to justify their actions, by creating mass hysteria in challenging economic times, or simply by highjacking a populist view to increase their own popularity and, in turn, votes. Hysteria and fear are the bedfellows of populist belief. They are referenced to receive a vote of confidence by the mass of people to lend weight to governments’ attempts to modify and dilute legal protocols.
This modification of legal processes has been exercised in the middle of every economic crisis and also at times of civil unrest. To achieve this successfully, governments have to portray the focus of their attack is in a dehumanised manner. Dehumanisation of the Jewish community during Nazi Germany or Muslims during the Kosovan war are just two examples of such actions in the last century. In both cases, the ethnic minorities and refugees were portrayed as vermin; they were shown in films and photographs as very poor and dirty, somehow below the threshold of humanity. They were used as scapegoats for the economic and social failure of the political administrations.
For the above reasons, there is a strong requirement for a higher authority independent from any country’s political and legal system as an oversight with legal authority, by which individual countries must abide. This authority is vested to prevent the rise of a tyrannical state or a desperate politician or administration which usurps the rights of its citizens. This was the founding philosophy of the European Court of Human Rights. The founding members and instigators like Sir Winston Churchill believed that there should be a higher authority to stop any violation of human rights and prevent those violations from becoming standard practice.
How could we stop the violation of human rights and genocide around the world if western civilisation permits an opt-out of its own governments from obeying the European Court of Human Rights? Do we believe that any administration can be left alone to self-discipline and self-regulate?
Although self-regulation is a noble and amiable solution it often falls short of delivering its aims and requires a higher independent authority to supervise and, indeed, regulate. The 21st century banking crises, the Parliamentary expenses scandal, mis-selling of PPIs are a few of many recent examples. I believe it would be difficult to argue against the concept.
The only real argument, as we have heard in recent years, is that it cannot be up to other European or British Judges in Europe to make the final judgment.
This raises the following questions: Does the location of the court, or the gender, religion, cultural and social background, nationality or even skin colour of the judge determine the quality of the judgment? Does this apply to other professionals like sergeants, dentists, carpenters, electricians, financial advisers, artists, singers? Should we not accept the judgments of the Court of Human Rights based on its merits and capability of its judges, regardless of their nationality or location?
By reviewing a few of the recent judgements of the European Court of Human Rights you can judge for yourself if the Court’s intervention was necessary to preserve our values. The values of the ECHR are the values of the generation who fought and died to preserve our rights. They fought in a war which tore the world apart in order to rebuild a better, fairer world where citizens’ rights are guaranteed and are not subject to arbitrary and unlawful treatment. The real question we have to ask ourselves is that if there are one or two judgments that we do not like or in fact few "wrong" judgments among thousands of "right" ones, would it give reason for abandoning the European Court of Human Rights entirely? Maybe we should remind ourselves on the famous motto written by the English jurist, judge and Tory politician of the eighteenth century Sir William Blackstone:
"It is better that ten guilty persons escape than that one innocent suffer."