UK Law Articles
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The Times
November 3 1998
This week the only court in the world where citizens can file complaints against their state opens in Strasbourg. Frances Gibb reports
Human rights go to court
The row over the extradition of General Augusto Pinochet now goes to the House of Lords. The affair has prompted fresh debate over how well legal systems can and do protect human rights - about the gap that can exist between the pursuit of justice and the application of the law.
So it is timely that, this week, a new European Court of Human Rights comes into existence - the only court in the world in which an individual can file a complaint against his state for the violation of human rights.
The new Strasbourg court is unprecedented in legal history. It has jurisdiction over some 800 million people from Greenland to Russia. The court will have 40 judges, one from each member state of the Council of Europe, and it is likely to receive about 5,000 cases a year.
The new court replaces the old creaking human rights machinery in Strasbourg, which has seen a steady stream of rulings against the UK since it was set up in 1950 - most recently last week, when the court ruled that police forces could be sued if they were negligent in failing to protect a person known to be at risk.
In all, 99 cases against the UK have been taken to the European Court. In 52, the court found violations of human rights, spanning telephone tapping, prisoners' rights, journalists' sources, court martials and caning. All of them prompted changes to the law.
In place of the old part-time, two-tier structure of the European Commission of Human Rights and European Court of Human Rights comes the new single court, which will operate full-time.
The idea is that it will be quicker and more efficient: the old system had become deluged with cases and was well past its sell-by date. Created as part of the framework set up in Europe in the wake of the Second World War - to protect human rights and guard against racism - it began with only 13 member states. In recent years, the break-up of the Soviet Union and other East European countries has brought a flood of applications to join the Council of Europe, from Croatia to Ukraine.
By the end of last week, when the old court delivered its final judgment - in the case of Podbielski v Poland, a judgment now assured a place in the legal textbooks - it had handed down 837 judgments. But whereas it took 26 years for the first 100 to be delivered, 95 were delivered in just the past ten months.
Cases cover the whole spectrum of rights guaranteed under the European Convention on Human Rights - from the right to privacy to the right to a fair trial, from the right not to be subjected to inhuman and degrading treatment to the right to freedom of expression.
Jack Hanning, head of public relations at the Council of Europe, says: "It is an important and historic event. For the first time, Europe will have a full-time human rights court - exactly 50 years after the Hague Congress which launched the machinery for adjudication of human rights."
Another change is that the court will become totally judicial. The old court was quasi-judicial but, as Chris Kruger, deputy secretary general of the Council of Europe puts it, there was a political element. No longer will it be possible for governments to opt out and remove the right of individuals to petition the court - that right is now automatic for every member state.
How will it work? A committee of three judges will first filter applications and those cases deemed admissible will then go to panels of seven judges.
Exceptionally, a grand chamber of 17 judges will sit, taking on the most difficult cases and instances where there may be a departure from previous rulings.
Nicolas Bratza, QC, the British judge at the court, says: "It should significantly reduce delay and improve accessibility. Five or six years to have a case heard is clearly unacceptable. The present route is tortuous, bewildering and strewn with hurdles."
Judges face the challenge of dealing with cases of increasing complexity and novelty from different cultures. The different standards of member states is one potential problem. But Mr Justice Bratza emphasises the importance of the court not diluting standards to make it easier for some incoming states to adhere to the convention.
"There is a very real risk that we would find a violation but a state could not implement our finding, so we water down the violation or reduce standards," he says.
"That would be extremely dangerous. We must find the courage of our convictions and find violations where states do not come up to standard.
"Equally, there is the problem of ensuring that states comply with judgments if the court is not to lose credibility. The tough task of monitoring will fall to a committee of ministers of the Council.
"The challenges we face are truly formidable but I have no doubt the court will meet that challenge."
