"The European Court of Human Rights is an activist court that is dangerously compromising our sovereignty and we should all be very afraid of it."
Yes, if you are a human rights violator.
Select researchers and politicians across the country have started propagating the message that the European Court of human Rights (ECtHR) poses a serious threat to the Dutch legal order by pushing the human rights envelope. PVV members are not the only ones arguing we should think hard about whether to continue our commitment to this human rights institution. This is part of a coordinated effort to discredit the Court among the public and to pressure judges into deviating from their national and international law obligations. I would argue that it is also simply inaccurate to state that the ECtHR is currently an activist court.
Many recent decisions from the ECtHR have shown deference to the government's method of ensuring human rights (that is, the ECtHR felt the government action fell within their margin of appreciation). Here are the ones on four of the biggest political issues in Europe at the moment:
1. The ECtHR has allowed Turkey to ban the headscarf being worn by students in universities, thus holding that the government's interest out-ruled the individual students' rights to freedom of religion. (Layla Sahin v. Turkey [2005], Appl.no. 44774/98)
2. The ECtHR has held that the prohibition of gay marriage by Austria does not violate the right to not be discriminated against in relation to the right to marry, form a family and the right to family life. (Schalk and Kopf v. Austria [2010], Appl.no. 30141/04)
3. The Court refused to find a violation of the right to family life of a Dutch women who fell in love with her neighbor, who happened to be an asylum seeker. They had two children together and enjoyed family life together. However, the government denied the asylum seeker the right to stay, and since his Dutch partner had lost her job, they did not qualify for the Dutch family formation permit. The ECtHR upheld the Dutch decision, reasoning that the Dutch women and her two children could always go back to Macedonia with the man. (Useimov v. the Netherlands [2006] Appl.no. 61292/00).
4. In December of 2010 the ECtHR reviewed Ireland's ban on abortion. The ECtHR found a violation of the right to private life - but only on very, very limited grounds. Further, the Court left Ireland a lot of leeway on how to remedy the violation. Thus, only one of the three applicants was found to have her rights violated (she was a former cancer patient whose doctor had advised her that having her baby would endanger her life). Her right to private life was violated, particularly, because the Irish government had not yet implemented its own Constitutional amendment into law. The Constitutional amendment allowed for abortion when the life of the mother was at risk but because it had not been implemented, mothers and doctors had no way of knowing whether a certain case would be covered by the amendment. The ECtHR's decision thus only means that Ireland must implement the Irish Constitutional amendment.
In regard to the other two applicants who wanted to have an abortion because they feared having their child would harm their health and well-being (though short of endangering their life), no violation of their right to private life was found. The Court disregarded the overwhelming consensus among the Council of Europe states that abortion be allowed in such cases and instead held that Ireland acted within its margin of appreciation in prohibiting abortions for these two applicants. (A. B. and C. v. Ireland [2010] Appl.no. 25579/05).
Nevertheless, critics still emphasize the activist nature of the Court. Most of the cases used to back up this claim are judgments that have to do with immigration in general, and the recent judgment about the mandatory hanging of crosses in Italian schools.
Thus, for instance, the ECtHR recently ruled that the Netherlands may not deport Iraqis back to Iraq without first evaluating the specific circumstances of their case. This is seen as an example of the ECtHR interfering in domestic affairs. However, let's look at the facts: The Dutch Minister of Asylum and Immigration, Mr. Leers, decided to deport the Iraqis and felt that Iraq was safe enough so that these Iraqis would not face the threat of torture. The Court simply held that the Netherlands could not deport these people without first engaging in an individual assessment of each case: would it be safe for each individual to return. Looking at the country in general, as a whole, did not meet this requirement.
Mr. Leers' reaction showed the disdain currently held for human rights and the European Court of Human Rights: he did not bother to inform the Iraqi asylum seekers, their lawyers and the parliament about this. The lawyers who did find out about the prohibition were not allowed to contact their clients, who were being held in detention.
The "activist" court removed the ban within the month, and the Netherlands were able to deport again to their heart's desire (providing they examine the circumstances of each case, a general requirement of national law).
Certain Dutch politicians and critics have been rubbed the wrong way by the ECtHR's supposed activism on family (re)unification matters. Interestingly, a HUDOC search shows that there have been no convictions of the Netherlands relating to family reunification (under the right to family life, article 8 ECHR) between 1 January 2006 and today. The most recent conviction I could find was from 2001, in which it was decided that the Netherlands had breached Article 8 by denying a resident permit for the child of two legally resident migrants in the Netherlands. When the parents had migrated to the Netherlands, they had not immediately brought their child with them. When they later tried to bring her over, the Dutch government denied it on the basis that the family ties had been broken. The ECtHR held that forcing the parents to choose between their daughter and the life they had built up in the Netherlands violated the parents' right to family life with their child. (Sen v. the Netherlands [2001] Appl.no. 31465/96).
Of course, the Court's restraint on this matter does not mean the Dutch approach to family (re)unification is without fault. In fact, the Dutch policy has been criticized by the Council of Europe's Commissioner on Human Rights as violating human rights. Yet, the "activist" Court has somehow refrained from addressing these violations.
Another hot issue for those who accuse the Court of activism is the recent decision in the Italian Lautsi case. The case dealt with the state requiring the presence of a crucifix in every classroom, which was found to violate "the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions" (Protocol 1 Article 2). According to the critics, the Court's decision in this case reveals the Court's disrespect for sovereignty and tradition. These critics conveniently ignore the act that the "tradition" the crucifix stands for is a fascist one, and that "tradition" does not change the rights enshrined in the Convention. For more analysis on this case, see Robert's recent post.
In conclusion, cries that the ECtHR has become an activist court are inaccurate. The Court deferred to Ireland's views on abortion (ignoring a broad consensus among the Council of Europe's member states to the contrary); the Court deferred to Austria's views on same-sex marriage (ignoring a growing consensus among the Council of Europe's member states to the contrary); the Court deferred to Turkey's views on head-scarf bans (choosing not to enter the Europe-wide debate on hear-scarfs); and the Court defers regularly to states limiting their citizens' rights to family life.
What are we left with? Politicians and scholars using this inaccurate argument to push for ignoring the ECHR. If, as explained above, the ECtHR is not activist, then it seems to me the only explanation for this move is a desire for the unchecked ability to violate human rights.
Related posts:
Posts
0 reacties:
Post a Comment