Tag Archive | "European Court of Human Rights"

Omar Mahmoud Mohammed (Abu Qataba)

News Post: Terrorism, the United Kingdom, and the ECtHR

Omar Mahmoud Mohammed (Abu Qataba)

Since the September 11th attacks, the United States and its Allies have struggled in dealing with suspected terrorists found both on the battlefield and as civilians in their respective countries; a topic that has remained prevalent in the news and in political discourse over the last decade. The United Kingdom experienced similar problems. One solution that the U.K. is employing is to deport terror suspects to foreign countries. This strategy must now overcome a ruling from the European Court of Human Rights that restricted Britain from deporting, also known as Abu Qataba, al-Qaeda’s main European inspirational leader, to Jordan because his trial would be tainted by evidence obtained through the administration of torture.

Over the past decade, Britain has struggled to find a balance in protecting civil liberties and national security. Mr. Othman has been in prison for over ten years for terrorism related offenses, and Britain planned to deport him to Jordan, as part of a wider strategy of dealing with terror suspects. The Court’s decision is the latest of several disagreements between Britain and rest of the European community. Britain’s right-leaning politicians are beside themselves with the placement of European restrictions on Britain. Prime Minister David Cameron plans to address the Council of Europe next week where he will present proposals to limit the European Court of Human Right’s ability to overrule domestic courts decisions.

Many in Britain are outraged that the European Court is interfering with Britain’s internal affairs. One British editorialist argues that the Abu Qatada rulings demonstrate that the European Court has lost its vision. Post 9/11 Britain did not want to try Abu Qatada, and men like him, but rather get rid of them. His initial incarceration ended with him being compensated for unlawful imprisonment under the European Charter of Human Rights. In response, the government introduced a system of house arrest, which was also found to be a human rights violation. After this, Britain arranged for him to be deported to Jordan where he would they promised to treat him humanely, but has since been overruled once again by the European Court. The editorialist calls the court an “affront to the enlightened attitudes that inspired the convention . . . [as it was not envisioned to make it] impossible for democracies to defend themselves . . . .”

The U.K. cautiously welcomed the decision of the court. While they praised that they court protected Abu Qatada’s right to trial, they are worried about the implications of the Court’s holding that diplomatic assurances do not violate the right to be not be tortured. Amnesty International highlighted that such assurances have been regularly ignored as terror suspects have been transferred to countries that will administer torture. Amnesty felt that the positive holding of the case was overshadowed by the Court’s affirmation of unreliable diplomatic assurances.

Over the past decade, there have been no easy answers for what to do with terror suspects. The United Kingdom is struggling to find the right balance. In addition to the obstacles of domestic politics, it must also comply with its treaty obligations under the European Convention of Human Rights.

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Council of Europe

European Integration – the European Convention on Human Rights

Council of Europe

Council of Europe

The previous article in this series focused on the European Union. However, the EU is not the only international organization in Europe promoting a broad European integration. The Council of Europe (CoE) is another influential organization in Europe. It was founded in 1949, which thus makes it older than the EU.

In similar fashion as the EU, it has a broad purpose. This is due to the fact that the allied powers considered a broad political, economic and social integration necessary to prevent another atrocious inter-state war in Europe. Therefore, according to article 1(a) of its statute,1 the aim of the CoE is “to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress.”

Treaty-driven integration

Despite its broad aim, the powers of the CoE are limited. While the EU is characterized as an organization of supranational character, the CoE is, in contrast, a fairly traditional international organization. Membership in the CoE does not entail any transfer of sovereignty. Consequently, the CoE and its organs may not bind its member states without consent.

Nevertheless, the CoE has still played a central role in the legal integration of Europe. This is mainly due to the fact that it has facilitated the conclusion of more than 200 treaties between its member states. Many of these have been highly successful. Due to the purpose of this series of articles I will only discuss what is arguably the most famous of these treaties, the European Convention of Human Rights.

Protecting Human Rights across Europe and beyond

The European Convention on Human Rights (ECHR)2 was signed in Rome on the 4th of November 1950. Today, sixty-one years and fourteen amendments later, it is generally considered to be the worlds most advanced international system for human rights protection.

The emphasis here is on the word “system.” In itself, a human rights treaty is just a document – plain text. The ECHR on the other hand has a well-functioning3 court system where individuals may file complaints against their member states after exhausting all domestic remedies. And, if he prevails, the European Court of Human Rights (ECtHR) is empowered to afford just satisfaction to that person. Even though the execution of these judgments is subject to the consent of the state violating the Convention, they are generally complied with.

The Court has a jurisdiction covering all core civil and political rights. The territorial scope of jurisdiction is also broadly defined in ECHR art. 1: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” (emphasis added). This provision is interpreted by the ECtHR as to not only cover acts within the territory of a state, but also acts committed abroad if a High Contracting Party exercises all or some of the public powers there. An example of this can be found in the famous Al-Skeini and Al-Jedda cases, decided by the ECHR this summer, where the United Kingdom was convicted for acts committed by their armed forces during the occupation of Iraq.

The ECHR as a living instrument

The Court has not restricted its expansive reading of the ECHR to the article on territorial scope of jurisdiction. The ECtHR has been developing the rather vague provisions in the Convention actively, across the board. It puts great emphasis on the fact that the ECHR is  a “living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today”.

Thus, its method of interpretation often takes the form of so-called inductive-deductive reasoning. When using this two-step process, the ECtHR first looks at the national legislation of the High Contracting Parties in order to induce a common European standard. This common standard is then used as an interpretive tool in order to determine the exact scope of the relevant ECHR right.

By using such an approach the Court is also able to develop its case law over time, in accordance with the changing national laws. Furthermore, it enables the Court to iron out differences in the human rights protection. If you are the only country in Europe having a blanket ban on prisoner voting – as the UK – chances are that the ECtHR will strike it down as a violation of the right to vote.4

Due to its “living instrument” doctrine the Court is often criticized for being a judicial activist. This critique is, at least to some extent, understandable in light of the Court’s evolutive interpretation. Nevertheless, the use of the common practices of the High Contracting States is a relevant mean of interpretation under VCLT art. 31(3). Either, one can see it as an application of the “subsequent practice” rule in (c), or, perhaps more convincingly, as “any relevant rules of international law in the relation between the parties” under (c), due to the fact that general principles of (national) law are to be regarded as a source of international law.

Reform and the accession of the EU

The picture painted above, of the ECtHR as the driving force behind the development of the Convention is only partially correct. In the last 60 years 14 additional have been enacted. These either amend the ECHR itself, or supplement it with additional rights. Large institutional changes have been made. The ECHR, for example, only handled a very limited number of applications before it was reformed in the 1990s.

The most recent reform happened with protocol 14 which, after being blocked by Russia for several years, entered into force July 2010. In addition to improving the efficiency of the ECtHR this protocol also provides for the accession of the European Union to the convention.

The accession of the Union will be the topic for the next, and final, article in this series. After giving you an (superficial) overview over the most important institutions and instruments on the playing field we will look at the accession more in detail. Is the Union, as an international organization even competent to accede? And what are the implications? These are the sort of questions we will be put forward in that article.

  1. Statute of the Council of Europe, ETS No. 1
  2. Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5
  3. Some might contest the fact that the ECtHR is “well-functioning” on the basis that it currently has over 150 000 pending applications. I will not deal with that issue in depth in this article. But, it should be mentioned that the Court  in most other aspects functions better than comparable international institutions. One could easily see astronomical pile of applications as indicating that the Court is a victim of its own success.
  4. As was the case in Greens and M.T. v. UK, applications nos. 60041/08 and 60054/08

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University of Denver Sturm College of Law

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