The European Court of Human Rights is rather interestingly styled in French as the Cour Europeene des Droits de l’Homme, which in fact would appear to exclude the rights of women, although one of the central principles at the heart of human rights law is the prohibition of discrimination under Article 14 of the Convention.
Six weeks into and halfway through my internship at the Court as a ‘study visitor’, I was treated last week to a rare hearing of the Grand Chamber where the panel of 17 international judges, including the British judge, Sir Nicolas Bratza, heard submissions from the applicant and the government of Russia on the subject of discrimination in the field of maternity and paternity leave in the Russian army. Some may be confused by mention of Russia, but it is one of the 47 countries that has ratified the Convention on Human Rights and is a member of the Council of Europe (not to be confused with the European Union which does not include Russia!), and has thereby agreed that the judgments of the Court in Strasbourg will be binding upon its domestic Courts and legislation. (The UK is currently a rather rebellious signatory in this regard, but more on that later.) The Russian applicant was a member of the Russian military, left as sole carer of three young children following a divorce from his wife, and had applied for three years’ parental leave shortly after the birth of his third child. His request had been rejected because parental leave of that duration could only be granted to female military personnel. He complained that the refusal to grant him such leave amounted to sexual discrimination. Court hearings are an interesting example of advocacy that would leave the Court of Appeal of England and Wales aghast! Most of the argument in Strasbourg is conducted on paper and hearings are only held for the parties to make final submissions and for the judges to ask any further questions. What seems to happen is that advocates on both sides prepare speeches and read them out, whilst a handful of judges ask a couple of timid questions at the end, usually a request for further information on a particular point, which the parties undertake to provide in due course. On this occasion, unusually, the advocate for the government of Russia became quite animated in her denunciation of the applicant, who, it seemed, was threatening to undermine the military might of the Russian army. One could perhaps understand the government’s perspective – where the vast majority of military personnel are men compared to only a small proportion of women, the army could be decimated if all men requested such paternity leave. And what happens in a time of war? The Court has reserved judgment so watch this space!
My duties at the moment consist of trying to reduce the huge backlog of cases before the UK division at the Court, some of which were first received in 2008, and most of which do not meet the admissibility criteria and the applicants will, some 2-3 years after their first approach to the Court, receive a letter saying that we cannot assist them in recovering their child who has been taken into care, or reverse the outcome of their trial, or release them from the torture of a secure psychiatric unit, or even persuade their neighbour to take down an offending boundary wall! So many cases are from sad, desperate individuals, who apply without any advice or guidance and send multiple files of papers for us to read and decipher and then prepare case notes for a Single Judge to review. Interns such as myself are the only ones to read through the whole file, which is an enormous responsibility. The complaints are wide-ranging and cover all areas of law, but, very interesting from a criminal practitioner’s perspective, many concern Article 6, where the individual feels he was denied his right to a fair trial on the basis that the outcome was not what he wanted or the Jury heard all about his previous convictions and clearly convicted him on the basis of his past! One of my cases to consider last week involved someone who had pleaded guilty at a pre-trial review on the advice of his solicitors and Counsel and even made admissions to the Probation officer in his Pre-Sentence Report, but was still alleging that he had been denied his right to a fair trial! Interesting question whether one can waive one’s own Article 6 rights by entering a guilty plea at any stage of the proceedings? This is where the carefully drafted basis of plea, notes of all conferences, the written advice of Counsel covering all possible angles of appeal, and the views of the Single Judge of the Court of Appeal can be so important for the European Court of final exhaustion in deciding whether there is any merit in the application.
In the era of legal aid cuts, there are now more and more complaints coming in from people who were unable to obtain legal assistance and represented themselves against an army of lawyers for the other side, mostly in cases at the family court, employment tribunals or planning inquiries. The Court has always maintained a principle of ‘equality of arms’ but this is being reviewed in the light of universal recognition that the public pot of resources cannot be limitless!
Meanwhile, we also continue to process the thousands of applications from UK prisoners complaining about the loss of their right to vote, who are now causing enormous delays in the processing of UK cases and will ironically place the UK ahead in the number of individual complaints received in 2010, of the likes of Turkey and Azerbaijan!! The UK is however unique across Europe in having a blanket ban on all criminals sentenced to custody of whatever length from voting and many of these individuals have now spent their time in prison reading the previous Strasbourg judgments in which the UK was first criticised and then urged to bring forward legislation to change the situation (see Hirst v UK and, more recently, Greens & M.T. v UK). In the view of the Court, our last general election of May 2010 was NOT Convention-compliant! Unfortunately, the prisoners have been encouraged to believe that they will be receiving compensation for their loss, and I am sure that, like barristers, have spent their expected money several times over already! We are all waiting for the Government to ‘do something’ but it doesn’t look likely given the determined feelings of certain tabloids and backbenchers! The powers of enforcement of the Court are certainly limited when it comes to one of its more politically important member states!
Strasbourg as a city and the Alsace vineyards continue to delight. Although it is an exceptionally expensive place to live and I am ensconced in a little garret in a fashionable suburb, I can see the spire of the second tallest cathedral in France from my window, the cycling culture is wonderfully sedate unlike the wild roads of London, and the mediaeval art and architecture a glorious distraction!
More updates on prison law and more soon…
