Home page The Human Rights Court - not fit for purpose Copyright©2006, GEL-Great Effects Lab Back to the drawing board... ECHR in need of redesign and clean up .... an urgent need for juries and independent judges. John Reid, the Home Secretary of the Government of the United Kingdom introduced an appearance he made, to a Parliamentary Committee concerning the Home Office, by stating that it was .." not fit for purpose". Not fit for purpose .... the classic Reidism Many suggested this was John getting his reciprocation in first, but even if it was, anything which has become mangled with European Human Rights processes, rapidly becomes unfit for purpose. Juries as a human right In earlier times, let us say more humane times, England used juries in cases of minorities which purposely included members from the same minority from which an accused came. The best known were those which included Jews in those cases where Jews were being tried in the City of London. These were successful because the Jewish members knew that to exercise bias would only degrade the status of that community within the mainstream. Such jury members were particularly fair, supporting guilty verdicts when necessary. On the other hand, requiring unanimity, the mainstream component had no way to abuse a member of the Jewish community through a biased vote. In any case human rights should not be just about what the law "permits" but it should also be very much concerned with normal human expections of what is reasonable and what is not. It does not matter if there was intent or not, a person can still be harmed by innocent decisions and should receive compensation. In that context juries become a central and only basis upon which to establish liability. Jury rights are a human right. European Court of Human Rights Track Record Source:Woolf et al 2005 Juries are there to prevent arbitraty decisions by judges There is no doubt that without the community conscience weighing up the possible aribtrariness of laws and decisions from government institutions, there is a tendency towards bias. This is even more so if one is dealing with judges who are political party or government appointees in countries with disastrous human rights records. Such is the case in the European Court of Human Rights where judges are drawn from countries outside the European Union. However, recent entries from Central Europe, judges are also suspect of not being entirely independent. Indeed, we need to remind ourselves that the European Court of Human Rights is not an institution of the European Union. In reality, Human Rights is such a second class strand of interest to all governments, and institutional dicrimination is so rampant, that the issue of judge independence has never been raised. In any case it is a useful potential lever in favour of government interests. Backlogs and justice delayed is justice denied The British Home Office has come under some criticism for backlogs and a failure to have followed up individuals who should have been retained or even deported from the United Kingdom. However, the ECHR has equivalent and serious problems in its failure to effect speedy decisions. The ECHR is not particularly good at resolving Human Rights issues because of its inbuilt likelihood of bias but also it is so slow that it is also a classic case of justice delayed being justice denied. The Woolf review Basically the ECHR can't handle its workload. According to a recent report "Review of the Working Methods of the ECHR", completed by a team headed by Lord Woolf (December 2005), the annual rate of submission of cases or applications doubled in number between 1998 and 2004. The backlogs have risen to 90,000 applications with the interested parts in some cases waiting more than 3 years. The European Union enlargement dimension Some 42% of this explosion in backlog is made up of applications from current accession countries (including Turkey) and recently acceded countries to the European Union. On the other hand the older members of the EU account for just 17% of the backlong. The Ukraine & Russia alone account for some 23%. As a result citizens of the European Union are having their cases delayed by this silage heap of applications flowing in from these new accession or applicant states. This also largely explains the doubling of applications received by the ECHR during the last 6 years. Therefore, as far as the European citizens are concerned, the ECHR is no long fit for purpose because justice delayed is justice denied. A failure in the EU enlargement pre-accession processes The statistics exposed by Woolf's review, raises serious questions concerning the pre-accession procedures of the European Union. They are in fact seriously flawed and rather than herald a new era of Human Rights for the citizens of Europe they have heralded a period of tragedy. Recently acceded governments can rest assured that the ECHR will not create too much of a problem for them because of the above-referred lack of independnce of the judges. Indeed, what has happened is that both the accession country and the European Commission reassuringly inform people that if there is something wrong they can apply to the ECHR for a settlement. As a result, accession governments have become lax about applying European Law and the European Commission drifts into the background pointing at the ECHR as it retreats from the European citizens. Source: Woolfe te al, 2005 There are many cases which have arisen as a result of the European Commission failing to apply effectively the Madrid Conditions for accession to the government institutions and the judiciary. The Madrid conditions require that government institutions and the judiciary need to be seen to be actively applying European Law, including the Human Rights elements of the Convention, before accession. The ECHR normally reviews cases which have failed to reach settlement within the national legal system. People do not go through the expense and anguish of taking their cases further to the ECHR when they do not think they have a case and, in most cases, would not be advised to do so if their counsel considered that on the basis of Law did not think they have a case. This massive growth in cases is a direct indication of the failure of the European Commission during the last enlargement to enforce the Madrid Conditions. Even after accession, they have failed to exercise their mandate as Guardian of the Treaties, to enforce European Law in these rogue states. This is particularly marked in the field of Human Rights. Source: Woolfe et al, 2005 The underlying cynicism is that the European Union, "recognises" decisions by the ECHR. However, European citizens are not effectively protected in those cases which might represent a political embarassment for the government concerned or, more particularly, where a single case might create a cascade of necessary change based upon the notion of legal precedence. This is why the political lobby, acting largely through political party contacts, is so strong. Prejudicial prevarication and no justice The best examples of a failure to do justice by the ECHR comes naturally in those cases where there is a broad appreciation that the plaintif has little or no political leverage. By way of example, members of the Roma community, the largest minority in Europe are, in particular, treated in a shameful fashion. The Roma, contrary to common thought, is as indigenous to Europe as most other communities. It has been here (on record) for over 650 years or longer. In some central European countries, such as Hungary, many so-called mainstream population's forbears came into the country, from surrounding territories, under colonization schemes to "populate" the country some 400 years after the Roma (Romungro) were already living in the territory (see footnote 2). Broadly speaking Roma cases come from Central European countries and the pattern is that, after the normal unacceptable delay, the "panel" of judges is chosen and this will be made up largely up of non EU judges and several from countries with disastrous human rights records. Normally the panel is weighted away from older EU members just as a bent jury would be set up. Naturally one ends up with a panel voting against the plaintif and there will invariably be the odd judge, from one of the European Union's older established members, who will write a dissenting opinion and not agree with the vote. But the Roma individual, group or family will normally lose their case, no matter what the merits, the government will sigh with relief and the dissenting judge will feel his conscience is clear. Typically the panel opinions could be written by civil servants preparing a brief for their own government's defence. Thus there is frequent deferment to goverment's superior knowledge of the local circumstances or to the fact that just because there is rampant segregation in an institutiuon, just because the institutuion was not set up especially to segregate Roma, then there is no segregation as far as the law is concerned. Such explanations and excuses are an insult to the intellect and are not a review of action and de facto evidence in the context of the strict letter of the law but are no more than shabby tactical prose to get the governments off the hook. One of the worst current examples of ongoing abuse ©2001, ECRE & RomaniWorld These Hungarian Romungro children have the misfortune of living in a Hungarian Village where they will end up in segregated educational denial denying them any future prospects of professional training or earning a decent income. The European Commission, European Parliamnetary Petitions Committee and the Ombudsman did abosultely nothing practical to assist when told about this, in the case of the Commission, as far back as 1999. A panel of HCHR judges would in such cases feel satisfied, in their written judgement, to state that, because the children were forced into segregation as a result of professional psychologist assessments (a la Nazi system) who provide such services to the government, then there is no basis to suggest Human Rights abuse. They have stated this in spite of the fact that some 85%-100% of the children thus-abused are Roma. This does not strike such judges as anything unusual even although such obvious segregation is against the law. ECHR judge panels, as a reflection of their lack of independence, consistently demonstrate deference to governments and a shocking willingness to be swayed in their favour as opposed to addressing the issue at hand, how individuals and groups are being abused. The ECHR is supposed to be about just settlements for people abused under Human Rights legislation, but unfortunately, in the case of those of European society who have least protection and are most abused, the ECHR invariably fails them in a shameful and all too-transparent fashion. Just like the ECHR, the European Commission, the European Parliamentary Petitions Committee and the European Parliamentary Ombudsman have failed to help over 250,000 Roma children who are forced by governments into segregated educational denial in Hungary, the Czech Republic and Slovakia (around 150,000 in Special schools and some 100,000 in other segregated establishments). Indeed, during pre-accession, in spite of advocacy and detailed field reports given to the Commission by the European Committee on Romani Emancipation, the European Union took no practical action to protect these children. Indeed, the European Commission proactively hid the scale of abuse and the direct government agency involvement from the European Parliament and Council before the accession votes. Direct government involvement was hidden since this would represent a contravention of the Madrid Conditions. The European Parliamentary Petitions Committee refused to investigate this affair. The development of Special Schools By 1922, Germany had developed the world's finest educational provisions and techniques for assisting children with learning disabilities. But Hilter's Third Reich used the same buildings to support a policy of "more efficient" euthanasia. The murder of Jewish and Roma children took place in what came to be known as Special schools which were used to segregate and then murder such children. They even took the trouble to pay "psychologists" to fraudulently "classify" such normal children as educationally incompetent to keep their paper work in order. Horrendous "medical experiments" were carried out on such children. In 1945 this process terminated and the Soviet authorities, throughout the satellite countries in East and Central Europe, returned the system to a socially responsible system for all children with genuine learning difficulties. This operated up until 1989 and catered for only small numbers of Roma children. With democracy and Human Rights the abuse started In 1989, with the collapse of the Soviet system, the Czech republic, Hungary and Slovakia governments immediately re-established the Special Schools as a means of enforcing segregated educational denial on Roma children. By 2004 these governments had paid in excess of Euro 2 billion as a direct bribe to rural local authorities to enforce segregation and educational denial on normal Roma children. This money was and is not spent to assist these children but goes "elsewhere" and the children provided with no useful education. These policies have been sustained enthusiastically by all governments formed since 1989 to date. Many think that Special schools are a old Soviet era invention but this is not the case. Many leading Roma in Hungarian villages, where this process has been set up and now operates, had never heard of Special schools before 1989. The classic Nazi fraud of using "psychologists" to state that normal children are educationally defective, as before, tidies up the "paper work". Reasons for sending children to Special schools are similar to those of the Nazi "psychologists". "The child cannot hold a pencil properly", "The child does not understand simple questions", "The child seems confused". Such comments refer to pre-school children being faced for the first time in their lives by an interview with a complete stranger! Often there is no pretence at "evaluation" with the single words "Roma" or "Cígany" being considered to be a sufficient justification. As a result of this almost industrial process the numbers subjected to enforced educational denial rose by over 400% between 1989 and 2004. This criminal process is official government policy. A bond between those in central government with fellow-travellers in local rural authorities who share a common interest in racism & money. This is in operation now. In the European Union, John Reid's phrase, not fit for purpose, is completely applicable to the theatre or judicial circus which tries to pass itself off as a system of defence of Human Rights in Europe. Prevention through protection and defence There is in Europe, amongst the public in general and the legal profession in particular, too much faith placed in what is written in the law. If the supporting and enforcement institutions are entirely corrupt then what is the real significance of "Human Rights"; they end up being no more than a promise never to be delivered. As a result people no longer believe that a prohibition, written in law, is as effective as proactive prevention, defence or protection. Prevention is an ex-ante concept signifying that abuse will not happen in most circumstances. Defence is stopping people trying to abuse others as they attempt to do so. Protection exists when a society is vigilent and which provides protection of all to prevent abuse. The mechanism of stopping Human Rights abuse, in the end, rests in the hands of the community. This is why, without jury rights there never will be human rights in Europe. As things stand, Corpus Juris, the codified European law which the Commission and others wish to push through to take precedence over English Law does not recognise juries. One of the most valuable inheritances we can provide for our children is a society with mechanisms which enable each to be able to defend the freedom of the other. Independent judges and a jury, as the representative of the community conscience, with a mission to prevent arbitrary decisions, is the only system which can guarantee Human Rights in practice. This is fit for purpose. Paraphrasing an Amnesty campaign slogan, we must all, as a society, act together to defend the Human Rights of others, otherwise our own rights, and those of our children, cannot be guaranteed. Footnote 1 References: "Review of the Working Methods of the ECHR", Lord Woolf et al., December 2005, ECHR. "Isles under threat" by Hector McNeill, 2006 (edited excerpt) Footnote 2 Online reference: "The Maria Theresa effect ... she can't be blamed for everything!", European Options, APE. "Some part of the explanation can be traced back to reforms initiated and carried through under Charles and his daughter Maria Theresa (1717–80) the Austrian archduchess, queen of Bohemia and Hungary (1740–80). Under Charles and Maria Theresa Hungary experienced an economic decline. Large parts of the country were almost deserted. In order to develop agricultural estates there was a need for labour and the Habsburgs began to encourage the colonization of Hungary with large numbers of peasants from all over Europe and in particular Slovaks, Serbs, Croatians and Germans. Many Jews immigrated from Vienna and the Polish territories towards the end of the century." "This influx of people of other nationalities was massive and resulted in the population of Hungary rising, more than threefold, to 8 million within just 67 years, between 1720 to 1787. Even before this influx the so-called ethnic Magyar population was not a majority and this influx during a short period of just 67 years significantly reduced as a proportion of Magyars in the total population to a tiny minority. Roma were first reported in Hungary some 400 years before in 1383. They were so prevalent by the early 15th Century, and welcome, that King Sigismund of Hungary (1417-1423) issued safe-conduct orders at Spis Castle for Roma."