This week we’re looking at the European Court of Human Rights. What is it? Does it provide adequate justice to victims? And what should we make of the ongoing debates in the UK about its role?
If you managed to catch our episode last week, you’ll know that we were talking about the European Court of Justice. This week we are looking at another international court – the European Court of Human Rights.
This court has long been contentious in some circles in the UK. The Conservative Party’s election manifesto in 2015 pledged to ‘break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK’. In the last year, the Home Secretary, Suella Braverman, has repeatedly expressed her view that the UK should leave the Court’s jurisdiction.
So what should we make of these arguments? What is the European Court of Human Rights, how does it function, and what does it do?
Joining us to discuss these questions is Dr Veronika Fikfak, Associate Professor in International Law here in the UCL Department of Political Science. Veronika leads an ongoing research project called Human Rights Nudge. She also serves as a judge ad hoc at the European Court of Human Rights and has recently published an article examining the Court’s practices in relation to settling cases before they reach a formal court hearing.
Mentioned in this episode:
court, human rights, settlement, cases, uk, european court, state, victim, terms, violation, ucl, caseload, strasbourg, country, problem, unilateral declaration, process, people, situation, law
Alan Renwick, Veronika Fikfak
Alan Renwick 00:05
Hello. This is UCL Uncovering Politics. And this week we're looking at the European Court of Human Rights. What is it? How does it work? And what should we make of the ongoing debate in the UK about its role?
Hello, my name is Alan Renwick. And welcome to UCL Uncovering Politics – the podcast of the School of Public Policy and Department of Political Science at University College London.
If you managed to catch our episode last week, you'll know that we were talking about the European Court of Justice. And this week, we're going to focus on another international court – namely the European Court of Human Rights.
This Court has long been contentious in some circles in the UK: the Conservative Party's election manifesto back in 2015 pledged to 'break the formal link between the British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK'; in the last year, the Home Secretary, Suella Braverman, has repeatedly expressed her view that the UK should leave the Court's jurisdiction; and the idea has been floated – though subsequently denied – that this could become government policy.
So what should we make of these arguments? And, even more fundamentally, what is the European Court of Human Rights, how does it function, and what does it do?
Well, joining us to discuss these questions is Dr Veronika Fikfak. Veronika is Associate Professor in International Law here in the UCL Department of Political Science, and she leads an ongoing research project called Human Rights Nudge. She also serves as a judge ad hoc at the European Court of Human Rights. And she has recently published an article examining the Court's practices in relation to settling cases before they reach a formal court hearing, something that we will explore in just a moment.
Veronika, welcome to UCL Uncovering Politics. And let's start with the absolute basics. People often get confused about what the European Court of Human Rights is and what it does. So do you want to give us just a very quick introduction to the Court?
Veronika Fikfak 02:18
Thanks, Alan, very much for this introduction.
So the European Court of Human Rights is a supranational court, as you just said – it's a European court that's located in Strasbourg in France. And it is there to apply what we call the European Convention of Human Rights, which was written in 1950. And the UK played a really big role in that.
But essentially, what the Court is there to do is adjudicate when individuals from around Europe, and here we include a very big number of European countries – 47, until recently, Russia having exited the Convention after the invasion of Ukraine this year. So now we're talking about 46 countries. But essentially, an individual, after they have been wronged by a country where they're located, is able to turn to the European Court of Human Rights and file a lawsuit before the Court asking to have an opportunity to be heard before this Court and to make their case that either they have been tortured, they have been wrongfully incarcerated, or, you know, have had other human rights violations committed against them. And in the end of this process, the Court finds either a violation or not, and the person would be entitled to receive damages or other remedies from the relevant state.
Alan Renwick 03:37
One thing that I guess people are often confused by is they imagine that the European Court of Human Rights has something to do with the European Union.
Veronika Fikfak 03:43
So essentially, the European Court of Human Rights is different from the European Union. The European Union was set up, you know, with a commercial sort of interest in mind and the freedom of movement of goods and things like that. But the European Court of Human Rights has always been about protecting the individual – the individual who's located in European countries – and has always been there as part of the Council of Europe to protect victims of, you know, human rights violations around the 47 countries of the Council of Europe.
Alan Renwick 04:15
And you mentioned that the Court sits in Strasbourg. Who's actually there? Who are the judges? What does the Court actually look like?
Veronika Fikfak 04:24
So it's got national judges from the different countries of the different member states. And it's 47 or 46 judges who are elected by the Council of Europe member states. But they are proposed by their own national, so member state. So for example, the UK would nominate three names to serve in Strasbourg, and then the Council of Europe, which is one of those names, to serve the Court. And they stay for nine years only, so there's no renewable post for them. And they adjudicate – they sit around in different cases, but there will always be a national judge sitting on the case of that nation. So for example, when you've got a case against the UK, there will be an English judge sitting on that case to explain to the other judges what the domestic circumstances are, how the domestic laws are applied, what the concerns might be coming out of the UK in relation to a specific case. So there's always national presence on every case.
Alan Renwick 05:30
That's interesting. I didn't know that actually. Very good.
Let's then explore your recently published paper. So this relates, as I said, to the settlement of cases that have been brought to the European Court of Human Rights, but settlement before they actually reach the Court itself. And I guess that that might sound kind of niche, at least to non-lawyers like me. But actually, it isn't. It's important for how the Court functions, how human rights cases are dealt with, and ultimately for who has power and who's advantaged and disadvantaged within this system.
And I guess in talking about this, we should maybe start with the basics again. So what is settlement? And how does settlement work in the European Court of Human Rights?
Veronika Fikfak 06:12
So when I... You know, (a) I didn't know that settlement takes place in the European Court of Human Rights when I started this paper, and I had been working on the European Court of Human Rights for more than 10 years. But, you know, generally, when we think about friendly settlement as lawyers, what we think about is essentially two parties coming together trying to find a compromise to a specific situation, right? The aim is to avoid an adversarial situation, but actually give both parties – and, in our case, that would be the victim and the state – the chance to sit down behind the table and reach a nice compromise where, you know, you're not only discussing guilt or not guilt, but you're actually discussing the question of compensation, you're asking for other remedies like apology.
Now, this doesn't happen in the European Court of Human Rights. So in the European Court of Human Rights, the settlement takes place in sort of a different way. So you file your application or your lawsuit, and you say what has happened to you and how you have been aggrieved, right – what the grievance is. And when this arrives to Strasbourg, what will happen is that the people working at the Court of the Secretariat will take that claim and they will send it to the state. And then they will work out together what kind of number, in terms of money, they should offer to you. So you, as the victim, you receive this letter from the Court that says your case is suitable for settlement. And then there's this X number. And usually, we're really talking about the €1,000, €2,000, no more in terms of what's happened to you. And there's this explanation that your case is very similar to other cases and that if you were to reject the offer you have received in this letter, that the state that you're suing has the opportunity to unilaterally close the case. It means that if they decided that they want to get rid of the case, they can, and they can offer you even less money than they had promised in the settlement.
So it's a very peculiar and different process where victims think they're going to sit down behind the table and then look people in the eye and have the opportunity to really air their grievances. And that doesn't happen. It's a totally rigid process. And it's a process that is dictated by the state and by the Secretariat in terms of what's offered to the victim.
Alan Renwick 08:35
So it's the Court, or the Secretariat of the Court, and the state that are kind of working something out between themselves. And then that is put to the applicant – to the person who's arguing that their human rights are being violated – on a kind of take-it-or-leave-it basis.
Veronika Fikfak 08:51
Essentially, yes. Essentially, yes. And what we did – because we wanted to understand this process and how it works on people mentally, so how it works on you as a victim – we actually ran an experiment to understand how that threat of a unilateral declaration influences your decision-making. And essentially, in the experiment, you know, the acceptance of the settlement offer went through the roof in terms of results. But also when we interviewed people, and we had access to lawyers through this process, they said that people feel when they get that letter, they feel that their case is not worthy of being considered by the Court, that they haven't suffered enough, that, you know, that really there's no point in the Court wasting its time in looking at their case. And so there's an element of, I would say, harm or hurt that is inflicted just in receiving that letter and how it's set up.
Alan Renwick 09:45
This unilateral declaration element seems very curious. So what happens if the state decides that it's going to make one of these unilateral declarations? I mean, you said the case is just kind of ended, thrown out. And presumably, is there some kind of acceptance of responsibility on the part of the state? How does that work?
Veronika Fikfak 10:05
So this is really interesting. What the state – and we've tried to track it through the years since this has really picked up since 2008 – the state acknowledges the occurrence of the event but does not acknowledge responsibility for it. It means that there's no acknowledgement of guilt or violation if you like, right. And so that's one element.
The other element is that it offers compensation, but it names it as ex gratia payment, which effectively in law means you've just given money, but you haven't labelled what it is, right? It's not damages. And that amount is always less than you would receive in a settlement situation, or if you pursued your case to the very end. So it means for victim it's a loss-loss situation.
Alan Renwick 10:55
How many cases are we talking about that go through this kind of process? So you know, are we talking about... You said that the Court will sometimes write to people and say to them, 'your case is one that is suitable for settlement in this way'. Does that mean that sometimes they don't write with that view and sometimes they don't say that it's suitable for settlement? And if so, what sorts of proportions of cases are being worked out through the settlement mechanisms and what proportion are actually going to the Court itself?
Veronika Fikfak 11:24
Yeah, so the Court, or the Secretariat to the Court, is very clear that it is only willing to settle cases that would otherwise end up in a violation. So it means that it only takes those through. If a case is not legitimate per se, it won't really push for settlement.
But in terms of numbers. So we've looked at, you know, caseloads from the 1980s to today, so to 2020. And what became clear is that in that time there were 25,000 decisions where the Court found a violation of what states had done in relation to human rights. And in addition to those 25,000, we have uncovered 10,500 settlements. So that is cases that would have otherwise ended in a violation, but that now disappear into this black box, or I call it the 'black hole of the ECHR case law' because we didn't know about it. And so that's actually, if you think about, it's like 50% of the 25,000 almost, right. So you've got an additional third of the caseload that seems to be missing.
And I think one of the issues for me was that (a) we don't know about it, but secondly, since 2019, this settlement part of the process has become mandatory, which means that every case now coming to the Court has to go through this process of being considered for settlement. So we expect the numbers to go up and to go up exponentially. And that is not only in relation to, like, procedural violations where the state is taking a long time to, you know, adjudicate in your legal proceedings or things like that. It is including for torture cases, for right to life cases and people disappearing, and, you know, Russia, Ukraine, Chechnya, etc. Those kinds of cases are also getting settled.
Alan Renwick 13:19
Would I be right to think, just listening to you, that this is something that you think we should be worried about? And you think that this is giving states too much power, essentially, and is taking away from the role of the Court in ensuring that human rights are properly protected?
Veronika Fikfak 13:35
Absolutely. I think states benefit from this process which has, in some sense been, if I put it in brackets, 'advertised' as a new process. They're benefiting enormously, right. They're benefiting in the sense that anything that is settled is not a violation. So they're, you know, for countries that are joining the EU, it means there's no problem anymore anywhere to be seen because things are disappearing. Number two-
Alan Renwick 14:01
So it's not recorded as a violation-
Veronika Fikfak 14:03
It's not recorded, no. Well, it's recorded as a settlement, but even those numbers are very different from the ones we had. But it is not recorded as a state having a problem in a certain area, right.
Alan Renwick 14:15
Veronika Fikfak 14:15
And so there is no incentive anywhere in the equation to address the problem at home. There is, in terms of human rights law, so there's no precedential value. So we've got sexual violence cases in specific countries around Europe that would really set a precedential value, and domestic courts could really address that, and that's also disappearing into the ether. We have no new law. And there is no recognition of wrongdoing. So for the states, this is all great.
And some states we're seeing increasingly are using this as an avoidance strategy. So we've actually studied as part of the project specific countries, and in Hungary what we're seeing is that MPs openly speaking in Hungarian parliament, that if we know that, for example, a rule of law case is going to end up in violation, let's settle it before it gets to an adverse decision. And when we looked at the statistics for Hungary, we've seen after 2010, specifically in 2013, settlements go through the roof and the majority of the applications that were filed against Hungary actually ended in settlement rather than in a violation. So it's a way for states to avoid adverse decisions
Alan Renwick 15:30
And why that is the Court doing this? You might hope that the Court would want to ensure that the human rights protection system was as strong as possible.
Veronika Fikfak 15:39
So the Court is using this as a caseload or sort of workload management tool, right. The Court receives every year about 40,000 to 50,000 new applications. It has been held hostage by budget, it has, so it can't employ more people to work on these cases. And so it has great interest and great incentives to reduce its workload. And this is one of the ways to go about it, both through settlement and through unilateral declarations. And in some sense, it makes – in terms of managing your caseload – it makes total sense that you would go down this route. My problem with the process is that the European Court of Human Rights has asserted since 1959, when it was established, that it's there for the victim, for the little guy, for the David, you know, in a fight between David and Goliath – that it's there to protect the minorities etc. But here in this equation, the victim is really disappearing.
Alan Renwick 16:44
And what would your advice be? Could the Court do a better job within the budgetary constraints that it faces? Would you give advice to the Court or is the problem with the Council of Europe and the member states – that they need to finance the system more effectively?
Veronika Fikfak 16:59
Obviously, I mean, if you increase the budget, the Court could do much more with its time. But I think, I think for me, there are a number of things that can be done.
First, I think the process needs to be much more transparent: the victim needs to know they're not going to sit down with anyone, that there's going to be no airing of grievances, no opportunity to be heard in court. I think that's really important. So transparency for the victim.
Secondly, what needs to happen is that I think the threat of unilateral closure needs to be taken out of the equation, because once you have that threat you have predetermined how individuals are going to decide. I think you can't have settlement for torture and right to life cases. Those are big cases, perhaps even for immigration and rule of law cases where you've got specifically vulnerable groups. So those are the kinds of things the Court needs to be thinking about.
But I also think, you know, on a more general level we need to think about whether the Court should be involved in helping cases be settled. But that's a bigger, I think, that's a bigger question that can be discussed later. But in terms of the letter that is sent to the victim, it needs to be very clear that the victim can say 'no'. At the moment, it doesn't do that, and the only victims that are actually saying 'no' are those that have expensive, expert lawyers who push back and say, ‘you cannot settle this case, because it will set a precedent, you know, in this country, for this and this reason’. And so that means we're created a system or a process that creates inequality in terms of who has access to the Court. And it is promoting, you know, specific victims from specific socioeconomic class. And I think that's problematic.
Alan Renwick 18:46
We should get on to the debates in the UK about the role of the European Court of Human Rights. I suppose a sceptic might listen to what you've just been saying there and say, 'gosh, the European Court of Human Rights doesn't seem to be doing a great job of protecting human rights – there's all this settlement going on. Maybe we'd be better if we had an entirely national system.' I think that's not your view. So what's the positive case for the European Court?
Veronika Fikfak 18:46
First of all, I think we do have a national system. And the European Court has always been there only afterwards where everything inside the country has failed. So it means that every country – and here I'm including the UK, but also any other of the 46 countries – has an opportunity at different stages of the legal proceedings, you know, within their country, to redress problems, and to impose, to have human rights protections.
So the European Court of Human Rights is really there where everything else fails and when our victim, right, vulnerable person has nowhere else to turn. So from my perspective, the Court is there to really tackle the big and really interesting issues. So at the moment, the Court is dealing with a lot of like climate case changes, and it is likely to really set the law in terms of the climate case protections for the new generations that are coming through.
It has protected a number of groups if we think about it. It has allowed in the UK, specifically, prisoners to have a right to vote, not at such a large scale that one would have expected, but at least it has prevented those very general blanket bans against prisoner voting. But even beyond that, if we think about the status of you know, homosexuals in the UK, it was the European Court of Human Rights that really pushed changes in terms of how they should be treated on UK soil. So I think it's got a major role. Its problem at the moment is that it's really receiving so many complaints from so many sources that it's finding it hard to do its job. But the job it is doing, in terms of setting the law, I think has been really, really useful and really changed the circumstances of many groups in the UK but also across Europe.
Alan Renwick 21:05
And are there other implications from the analysis in your paper for this debate? One point that I picked up is just how rarely the UK is found against in the European Court of Human Rights, at least compared with many other countries. So it's not as though there are lots and lots of cases that are going from the UK to the European Court and the UK Government is being found, or the state is being found, to have violated the European Convention.
I mean, I guess another thought is you're talking there about how states can use the settlement process in order to advance their own purposes, in a sense. And one could argue that maybe the UK could be doing a bit more of that in order to not face such difficulties that the UK Government sometimes thinks it is facing? Would that be fair?
Veronika Fikfak 21:59
Yeah, I think a lot of the discussion around the European Court of Human Rights is done, in some sense, for the media, or, you know, for the general public. I think there are so many different tools from a governmental position that it could use before you go to the most drastic of leaving the Convention, right. The only country that has left the convention was Russia, once it invaded Ukraine, so I don't think we're there yet.
One option is like Hungary, and like Denmark, for example, in relation to immigration cases. The UK could be settling cases and thus avoiding adverse decisions. If it decides to litigate cases, it could take cases to Strasbourg, make clear its position and then not comply with them, or at least delay compliance. And that's one of the things that Denmark is playing with, that it is essentially waiting, you know, litigating cases, for five years or so because it takes quite a while for the European Court to decide, and then you've got a change in government. So you've got a shift – a political shift. So it means that the pressure on you as a government to address what was the situation at the time is reduced. But also if you're not complying, for example, in relation to prisoners' cases, you've got Cameron who didn't comply with that decision for longer than a decade. So there is flexibility.
And on an international level, that is outside of the law, there is a lot of room for the UK to really use its, I'll say reputation or influence, to negotiate or ask the Court for a different outcome. And we have had those since the 2000s. We have had those moments where governments have come together and have told the Court: 'please be more deferential towards us'. After Brighton – you know, there was this declaration in Brighton and then in Copenhagen – the Court started using more of what we call 'margin of appreciation', and that's essentially deference towards the UK, specifically towards all democracies (you know, Denmark, UK, and kind of Western countries), to say, we will allow you to decide on your own what's appropriate in this situation. And so in that sense, I don't think that, you know, the statistics I provide the end of the article – which are that in 62% of cases the UK is not found in violation of the Convention – I think that reflects very much the deference that the Court has shown towards the UK, and that it has said there are circumstances and situations in which you are the primary decision maker and we, the Court as an international institution, will take a step back. And they have done this regularly. And it is very rarely that the UK is actually found in violation.
Alan Renwick 24:45
It's really interesting because I think we often think of courts as being these very sort of august institutions that are entirely separate from the world of politics. But one of the things we discussed last week in the episode with Michal Ovadek when we were talking about the European Court of Justice, the EU's court, was just how political the ECJ is and how kind of strategic it is sometimes, and thinking about the wider purposes that it wants to pursue, and how it can best do that. And one of the things that Michal pointed out was that well, all national courts and international courts are like this – they all have to think about politics and be very sensitive to the context in which they're operating. And I guess you're saying that the ECHR, the European Court of Human Rights, is in many ways just the same as that – that it also is responding to its context, it understands that it needs to be a legitimate institution in the eyes of the member states and member state publics. And therefore there does need to be a bit of, kind of, give-and-take sometimes in the degree to which it's going to kind of impose a hard line on particular issues.
Veronika Fikfak 25:54
Absolutely. And I think that's absolutely right. I think the Court is a very partly strategic, but a very, you know, sensitive actor. And it's sensitive to what is happening within the European context and what is happening within each one of the different countries. So, for example, when there were very serious discussions about the UK exiting the European Convention of Human Rights, or the Court, you actually had, you know, both the president of the Court intervening and giving a speech, you had the English judge coming and speaking very publicly. So I think it's very clear in the Court's eyes that it can be totally divorced, that it's not this ivory tower but that it actually is operating within a specific political context.
That said, the court is there to perform a very different function than a legislature or the executive. So if you think about the separation of powers, right, you've got three branches of powers: legislative branch, executive branch and judiciary. And it is the legislative and executive branch that are elected or that are political, that perform a function where they need to mirror what the majority wants. And the court as the check on that majority power, or majority influence, is there to protect the little guy, the individual, the minorities. It is there really to see when a situation is so egregious and where the majority laws go too far. It is there to protect that individual in that vulnerable group.
So I think even within that political context, the Court has to perform its function – its constitutional, if you'd like, function – which is to protect the victim of human rights violations.
Alan Renwick 27:44
That's been so interesting, Veronika. Thank you so much for that discussion. We explored the details of settlement mechanisms in the European Court of Human Rights. But we also looked at the big picture of the arguments for and against the Court as well. So thank you – really, really interesting.
Veronika Fikfak 27:59
Thank you, Alan. It's been a pleasure.
Alan Renwick 28:01
We've been discussing the article 'Against settlement before the European Court of Human Rights' by Veronika Fikfak, published last year in the International Journal of Constitutional Law and available for anyone to view online. And we will of course, as usual, put the full details of the article in the show notes for this episode.
Next week, we have a special episode with Marc Stears, Professor in the UCL Department of Political Science and Director of the UCL Policy Lab. Long-term podcast listeners may remember that I promised you an episode with Marc last term – but it had to be postponed. Well finally it's coming your way. We'll be discussing Marc's eventful life as a political theorist, speech writer to Ed Miliband, think tank chief, and bridge between the worlds of academia and policymaking. And we'll be exploring what's driving his work in the UCL Policy Lab today.
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I'm Alan Renwick. This episode was produced by Conor Kelly and Eleanor Kingwell-Banham. Our theme music is written and performed by John Mann. This has been UCL Uncovering Politics. Thank you for listening.