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Law with sharper teeth
Protocol 14 will finally allow the European court of human
rights to make their judgments bite
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Alex Bailin and Alison Macdonald
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guardian.co.uk, Tuesday 23 March 2010 22.30 GMT
The European court of human rights is collapsing under the weight of its
caseload. There are more than 100,000 pending cases, and at present levels
there would be over a quarter of a million undecided applications within five
years: a backlog equating to over 5,000 cases for each of the 46 judges. The
parliamentary assembly of the Council of Europe has said the system is
already "in danger of asphyxiation".
Fortunately, in January a significant stalemate was broken when Russia
finally ratified a six-year-old provision which will speed up the court's
processing of cases. Protocol 14 provides for a more robust and rapid filter of
weak cases, with a single judge having the power to declare wholly
unmeritorious cases inadmissible, without any right of appeal. "Repetitive
cases" can also be blocked if a relevant ruling on similar issues has already
been given. Most controversially, the court can also refuse to hear cases in
which the applicant has suffered "no significant disadvantage", providing the
case was properly considered by the domestic courts in the relevant state.
Russia had previously blocked the entry into force of Protocol 14 in protest at
what it considered were "political rulings" of the Strasbourg court, primarily
relating to the conduct of its operations in Chechyna.
But when Protocol 14 comes into force in April, there will also be another
important consequence. It gives the Council of Europe's decision-making
body, the Committee of Ministers, stronger powers to ensure that member
states comply with rulings of the court. The current position is slow and
complex. In the UK, for instance, if the government loses a case in Strasbourg,
the underlying domestic law remains largely unaffected. Of course, the
individual who won the case in the European court will have the declaration of
an international court that the UK has violated his fundamental human rights.
But when he comes to enforce the judgment of the European court back home,
things get distinctly messy.
The Human Rights Act provides that UK courts must take the Strasbourg
ruling into account. But the doctrine of precedent still bites; so anyone who
wants to overturn a decision on the basis that it is inconsistent with the
subsequent Strasbourg ruling will generally have to litigate the case up to the
UK supreme court. In the meantime, the offending domestic law in effect
remains in force. The exceptions to this drawn-out process are currently quite
narrow.
But Protocol 14 may change this. The Committee of Ministers can refer a case
back to the European court if it considers that the state has not fully complied
with a decision of the court. If the court agrees, the committee can decide to
take action against the state for noncompliance – including, in theory,
suspension or expulsion from the Council of Europe.
So how would that affect the UK? Perhaps the most pressing issues concern
prisoners' voting rights and the retention of non-convicted persons' DNA
profiles. In 2008 the blanket retention of DNA was held by Strasbourg to
violate privacy rights, but the old law remains in force, although it is currently
being applied inconsistently by individual police forces. And in 2005, the
European Court held that a blanket ban on prisoners' voting violated their
human rights, but the ruling has still not been implemented. Over 100,000
prisoners have missed the opportunity to vote since the decision. Prisoners are
taking legal action in the domestic courts, backed by the Equality and Human
Rights Commission, to challenge this failure. But all that a court could do
would be to declare – again – that the government is in breach of its
obligations.
At present, whether or not the government is deliberately playing for time, it
can alter the offending law at its own pace, safe in the knowledge that the
Strasbourg enforcers are pretty toothless. But the new development may
change this: there is no point having a supreme international human rights
court if its judgments can be quietly ignored. And if the Human Rights Act is
killed off after the next election, individuals will once again be forced to take
their cases to Strasbourg.
Perhaps the significance of Protocol 14 will then become clearer as the power
of the European court to force states to comply with human rights obligations
is felt more directly. It would be sad if only that caused those who favour
repealing the Human Rights Act to mull over the significance of the choice
they are forcing upon us: staying in or out of Europe.
Alex Bailin QC and Alison Macdonald are barristers specialising in human
rights at Matrix Chambers