Tom Zwart is a professor of human rights at the School of Law of Utrecht University and a board member of the Telders Foundation, a Dutch think-tank devoted to liberty, democracy and the Rule of Law.
The fact that, as a result of its judgment on the right to vote for prisoners, the European Court of Human Rights has clashed with public opinion in Britain and political sentiment in Westminster is hardly surprising. The judges used to live in their countries of origin, while meeting each other only periodically to discuss the cases. Now they are all permanently based in Strasbourg, which makes it difficult for them to keep in touch with reality on the ground. They have exchanged the occasional chat with the grocer on the corner for conversations with human rights interest groups and academics, which tend to uncritically accept their judgments.
Consequently, the Court has felt encouraged to add rights to the European Convention on Human Rights which clearly are not there – like the right to be protected against environmental pollution. Recently, in a case on the presence of crucifixes in Italian class rooms, the Court read a right not to be exposed to such religious symbols in a provision that allows parents to have their children educated in accordance with their own religious beliefs.
The Court has also relaxed its rules of evidence in a remarkable manner. In a recent case, an asylum seeker claimed to have been submitted to inhuman and degrading treatment in Greece. The Court admitted that the applicant had failed to substantiate his allegations with proof. It nevertheless accepted them as being true, because reports of the High Commissioner for Refugees and organisations like Amnesty International indicated that the treatment of asylum seekers in Greece was poor. But these reports were of a very general nature and they did not contain any evidence related to the individual case of the applicant. This outcome is the more striking since the Court does not allow national courts and juries to rely on hearsay evidence.
The Court has also become rather cavalier with regard to its own precedents. In a recent case, Belgium was convicted for sending an asylum seeker back to Greece under the Dublin regulation. In so doing, Belgium had relied on a judgment, handed down only eight months before, in which the Court had stated that it was safe to do so. This, while the Court expects all judgments to be implemented by every country, including those in which it was not a party.
It is now up to Prime Minister and his legal advisers to find middle ground between the duty, imposed by the Court, to accord voting rights to at least part of the prison population and the stern rebuke by the House of Commons. Although this is quite a challenge, there is a way in which David Cameron can solve his prisoner’s dilemma.
He can take his case to the Committee of Ministers, the executive body of the Council of Europe, of which the Government is a member. Through its resolutions the Committee can pronounce itself on the scope and meaning of the European Convention on Human Rights. Since the Committee of Ministers is the authoritative voice of the states party to the Convention, these resolutions carry much weight. Under the law of treaties they should even be regarded as informal amendments to the Convention, which ought to trump any interpretation put on it by the European Court of Human Rights.
If the Prime Minister were able to persuade his colleagues on the Committee to water down the duty to give prisoners the right to vote – at least as far as the UK is concerned – he would be able to accommodate the Commons' majority while at the same time playing by the Strasbourg rules. He would also breathe new life into the constitutional arrangement under which the Committee of Ministers acts as a countervailing power to the Court.
The Court, of course, will also gain from such action. It will be able to resume its more modest and realistic role, from which all people living in the member states of the Council of Europe, including those in Britain, have benefited in the past.