Don’t Caricature Europe’s Court

Europe is entering a big election year. In 2017, voters in a range of countries, including France, Germany, the Netherlands and now possibly Italy, will go to the polls. We can expect campaigns fought on stark battle lines. Austerity policies and immigration will feature. So will the role of European institutions.

This is already evident in France, where the Strasbourg-based European Court of Human Rights has found itself the subject of debate in the lead-up to the presidential election. The court was established after World War II, as part of the Council of Europe, to ensure that states uphold the European Convention on Human Rights. When the French jurist and former court president René Cassin was awarded the Nobel Peace Prize in 1968, he lauded the court’s judges, among others, as “the real laureates” for their work in protecting individual liberty from arbitrary state power.

Yet today, these same judges are increasingly derided as an impediment to democracy by politicians looking to appeal to nationalist sentiment. The court and the European Convention on Human Rights have come under attack in a growing number of European countries.

This is symptomatic of a wider breakdown in the postwar consensus that accepted international law as a fair price for peace and prosperity. These days, the public appetite for international cooperation is waning. Many people are feeling the sharp end of globalization, as their communities face widening inequality and mismanaged diversity. Political programs that promise hard borders and unbridled national sovereignty have become an easier sell.

These agendas, however, ignore how profoundly important international human rights law is for Europe’s citizens. Any individual whose liberties have been violated can bring a case to Strasbourg. This is a right of individual petition not seen anywhere else in the world, and it provides a beacon of hope to the desperate and disenfranchised.

The Polish teenager who was prevented from having a legal abortion after she was raped. The German citizen tortured as part of a C.I.A. secret rendition operation. The Togolese woman subjected to domestic servitude in Paris. Through its judgments, the court has reinforced freedom and justice across the Continent — from limiting pretrial detention in Russia to initiating the decriminalization of homosexuality in Cyprus and making it harder to gag investigative journalists in Britain. Thanks to one ruling, all children in France, whether born in or out of wedlock, now have the same rights.

The court is not perfect; no institution is. Its caseload has grown sharply as more countries have joined the Council of Europe. Reforms have successfully reduced the backlog, and this must continue.

Recent years have seen a reassertion of the “margin of appreciation,” the doctrine that gives member states some discretion in interpreting their convention obligations when faced with sensitive issues on which there is no Continental consensus. The court did not, for example, support the attempt by a French citizen to overturn the country’s ban on wearing the full-face veil in public, largely because opinion is divided across Europe, and so it is best for national authorities to set their own rules.

It is right to expect the court to exercise such self-restraint. But beware overblown accusations of judicial activism, which present Strasbourg as seeking to exceed its mandate. This caricature is simply not supported by the facts.

The court holds that national authorities are the primary guarantors of human rights, a point frequently made in its decisions. A vast majority of the cases that come to the court are declared inadmissible. Where a state is found in violation, the court has stepped in, at an applicant’s behest, only because national authorities have failed to uphold the law.

The European Convention on Human Rights does protect every individual without distinction, even those who stand accused or convicted of crimes — and this has, at times, proved controversial. In 2012, the court ruled against the British government’s bid to extradite the terrorism suspect Abu Qatada to Jordan, given the risk that evidence obtained by torture would be used in his trial. (The Jordanian government subsequently pledged not to use such evidence, and he was deported the following year.) The court’s decision thus helped Britain remove a potentially dangerous individual without compromising its values.

The guarantee of the right to a fair trial, or protection from violence in police custody, are the very essence of the rule of law. Strasbourg did not grant these rights, though; Europe’s governments did when they ratified the convention. The court’s job is merely to hold states to their word.

If institutions can improve and grow stronger, they can also be weakened and undermined by politically motivated attacks. This is one lesson from Brexit.

For years in Britain, mainstream politicians joined fringe groups to blame the European Union for various national problems. Over decades, the country experienced a steady drumbeat of Brussels-bashing, including in Parliament and the national press. As a result, by June’s referendum, it had become much more difficult to make a persuasive, positive case for the union.

There are fears that the same dynamic will occur in other countries. And it is not hard to imagine how, eventually, attacks on the European Court of Human Rights could have a similar effect.

Far better to embrace the opposite. It does voters a great disservice to assume that their social and economic frustrations render them insensible to the benefits of a Europe-wide legal system that defends their liberty and advances democracy. Responsible voices should be using every opportunity to highlight the value of Europe’s human rights safeguards.

In the Strasbourg court, Europeans have a willing servant that strives to protect their interests and enhance their daily lives. Let’s hear that case made, loud and clear, in 2017.

Thorbjorn Jagland is the secretary general of the Council of Europe.

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