Adam Bodnar and Dominika Bychawska-Siniarska are lawyers in the Helsinki Foundation for Human Rights, leading Polish human rights NGO.
"For many years, the UK has had a constitutional problem with the European Court of Human Rights. The voting rights case was a trigger after which the UK politicians started to delegitimise the Court. The Abu Qatada case and the Court’s ban on deportation of alleged terrorists was another serious concern.
The UK’s recent chairmanship in the Council of Europe was a reflection of this domestic debate. The UK did a lot in order to restrict the possibility of lodging complaints with the Court by, for example, promoting the idea to introduce fees or mandatory representation by a lawyer. However, its attempts were only partially successful. On the one hand, the Brighton Declaration put emphasis on the enforcement of judgments by member states and on how to deal with the backlog of cases. But on the other hand, the concept of the "margin of appreciation" was agreed to be inserted into the preamble of the Convention. It was a signal for the Court to not go too far when the issue is sensitive. Although the preamble has not yet been changed (it requires ratification of an additional protocol), the Court seems to already be using it in practice.
But those changes seem not to fully satisfy the UK. The government continues to refuse the implementation of the prisoners’ voting rights case. The Court is subject to criticism by some leading UK judges. David Cameron is seriously mentioning the exit from the Convention system, claiming that British courts may do equally well in reviewing human rights violations, and so there is no need for any external supervision.
At the same time, other countries remain quite silent. For once because they have their own problems and cases in the Court, so it is much easier for them to criticize the Court then support it. Secondly, they concentrate on technical aspects of the reform of the whole system, including the system of enforcement of judgments. It means that the gravity of the debate stands in the wrong place. Looking through a prism of an eventual withdrawal of an old democracy from the Convention, the reform technicalities seem to be a minor detail. What is the point of implementing friendly settlements at the national level, or even appointing a Special Rapporteur for the execution of judgments, when in the meantime the whole system may collapse? What is the point of discussing whether the Strasbourg Court should be a court of constitutional justice or individual justice, when its judgments will not matter any longer? Furthermore, NGOs tend also to play the same game, concentrating on specific details of planned reforms, and forgetting about the vitality of the whole system. We have such a proverb in Polish - "the patient was being treated intensively, but he died in the meantime ".
As underlined on many occasions by the President of the Court, judge Dean Spielmann, the UK’s pull out from the Convention would be a political disaster. You cannot be a member of the Council of Europe, community of 47 states, without the ratification of its major human rights' instrument. It may also mean possible consequences for the UK’s membership in the European Union.
Saving the Court and the human rights protection system should become a European priority. Without the UK on board, the whole Council of Europe system may collapse. It would lead members such as Russia, Ukraine or Azerbaijan to ignore the system. But please remember that for individuals, human rights defenders or NGOs from those countries, it is sometimes the only hope for justice. Other states would use every excuse (such as the margin of appreciation) to oppose the Court in sensible cases. In this context, the inviolability of the parliamentary supremacy principle looks like quite an egoistic thinking confined to the local playground, ignoring the role of the UK in democratic transformation of the Eastern bloc, which started 25 years ago.
In this context, saving the Strasbourg Court seems an urgent need. A return to grass root ideas of the Convention is required, but it is also necessary to grant institutional and financial support to the Court. These issues have been discussed for years, however they have not yet been translated, especially in the crisis period, unto any concrete and meaningful actions.
The Court itself has an important role to play in the process. The Court’s Registry can only strengthen its credibility and position by quick examination of strategic cases. Unfortunately, right now such loud cases as e.g. the Pussy Riot complaint are dealt with a substantial delay. The case was communicated to the Russian government after President V. Putin had already made use of his pardon powers.
The system of the European Convention, despite many criticisms and the backlog of cases, is regarded as the Council of Europe's "jewel in the crown". Other regions of the world may only envy Europe. This jewel should still unite the people of Europe – coming both from the UK, but also from Ukraine or Russia – around the idea of fundamental rights. But it is our joint, European duty to take care of it."