In this guest post, Torquil Dick-Erikson, explains why the ECHR does not even do what it says on the tin, so it is not much good for protecting our human rights. 

Here are some details of cases showing that the ECHR is really no good for protecting human rights as we understand them in Britain, and indeed in some cases the Court itself has violated the rights of applicants.

This is a court that has ruled:

• that the 10-year old torturers and murderers of 2-year-old baby James Bulger did "not get a fair trial" and were entitled to compensation...  (Thompson and Venables vs the United Kingdom - 1999)
• But that it was right to give a criminal conviction to street market traders in Sunderland for selling bananas by the pound weight as their customers preferred, instead of by the Kilo as Eurolaw demanded? (Thoburn and others vs the UK - 2004)
• And that five years in pre-trial detention for an INNOCENT suspect with no public hearing was "reasonable" under article 6 of the Convention because "detention is intended to facilitate the preliminary investigation" (verbatim, in the Court's motivation !) (See Luciano Ferrari Bravo vs the Republic of Italy - 1984)

Over and above the vagaries of the Court, made up as it is of judges who are the political appointees of 46 governments, some with highly questionable Human Rights records of their own, there is a major shortcoming in the wording of the Convention itself. It does not in fact make provision for the fundamental right of anybody not to be imprisoned, even temporarily, without sufficient evidence of a prima facie case to answer. This is provided by Section 38 of Magna Carta (1215), and ensured for us in the laws of Habeas Corpus (Act of 1679). See more details in https://magnacarta800th.com/articles/magna-carta-europe-yesterday-today/

If there be insufficient evidence, or none, then an arrest followed by a period of imprisonment, based merely on some clues, is what we consider to be “arbitrary”. The real reason for the arrest and imprisonment can be different from the declared reason. It can be political. In contrast to the ECHR, the Universal Declaration of Human Rights does ban specifically “Arbitrary arrest and imprisonment” in its article 9.

Other instances:

-Sabadistsch-Wolff vs Austria (2018): Ms Sabaditsch-Wolff, an Austrian citizen, said in a meeting, that the prophet Mohammed married a girl aged six and consummated the marriage when she was nine. And that in today's world he would have been had up for paedophilia. A member of the audience felt offended and reported her for hate-speech. She was tried for it, and convicted, again on appeal, and her conviction was confirmed by Austria's supreme court. She went on to take Austria to the ECtHR for violating art. 10, her right to freedom of speech, but that Court rejected her argument saying that protecting religious sentiment outweighed her right to freedom of speech. 

In effect the ECtHR upheld a de facto reinstituted criminal blasphemy law in Austria, certainly in favour of Muslims. It failed to uphold the right to freedom of speech.

-British novelist victim of medical homicide in Florence (a triple violation by the Court itself of three supposedly protected rights): The victim died from an intestinal occlusion after barium had been prescribed and fed to her in the absence of direct medical supervision, in violation of precise medical laws which are intended to stop the (usually lethal) administration of barium to a patient with an intestinal occlusion. The two doctors involved, and responsible, made verifiably untrue statements to the judicial investigators, and these were proven to be untrue by documentation which was presented to the investigators. During the four years of the investigation, the investigators completely ignored the untrue statements and the documentation presented, and dropped the case, shelving it as "insoluble". The malpractice, with its lethal effects, therefore went undetected and unsanctioned.

Having no further recourse as injured party under the Italian legal system, the victim's son applied to the ECtHR against the Republic of Italy under article 2 of the Convention, on grounds of wilful and deliberate failure to conduct the investigation with due diligence and hence to protect the right to life, affording its violators an undeserved immunity and impunity. The Court left the applicant under an illegal gagging order during the two years of its deliberations, thus violating his right to freedom of expression (supposedly protected by art. 10 of the Convention), and in the end rejected his application, in its turn, not considering and refuting with counterarguments, but simply ignoring, the facts and the documentation he had produced in evidence regarding how the Florentine investigators had simply airbrushed them out. Only when he was told of the rejection of his application, did he learn that the panel of seven judges of the ECtHR who heard the case included not one, but two, Italian judges, one representing Italy, and the other standing in under the flag of San Marino. The second of these two was as Italian as the first and had worked for the Italian State Advocate's office, which was a party to the case, having defended Italy in the proceedings.

His right to an "impartial tribunal", supposedly safeguarded by article 6, was thereby violated by the European Court of Human Rights itself, since this panel included two judges from the country being accused, so the tribunal did not even have the appearance of impartiality. (see Torquil Dick-Erikson vs Italy, case 37900/97, greater details included in his submission to the UK Ministry of Justice delivered on 8th March 2022 as part of the Ministry’s HRA reform consultation; readers can decide for themselves if the Court acted with justice and honesty or not.)

Cases where the ECHR could have been invoked, if it had included a valid Habeas Corpus right, but was not, in particular in the light of the Ferrari  Bravo case showing the total inadequacy of article 6 in this regard:

-Colin and Andrew Dines and two others: Colin Dines, a retired British judge, had been involved in some business dealings with a major Italian Telecoms company, Fastweb. Fastweb's top management came under investigation, and were arrested and imprisoned, by the Italian judiciary on a suspicion of conducting VAT carousel fraud.

The arrest of a suspect, on the basis of mere clues, often takes place at the outset of an investigation in Napoleonic-inquisitorial jurisdictions (ie practically all over the continent). Investigations are then conducted with the suspect in prison for the duration of the investigation, with no right to a public hearing (no Habeas Corpus). As we saw the ECtHR ruled in another case that 4 yrs and 11 months of preventive detention with no public hearing is no violation of the Convention because (verbatim) "detention facilitates the preliminary [!] investigation". The pointlessness of the ECHR is thus shown up, as regards the fundamental right of freedom from arbitrary arrest and imprisonment.

After many long months in prison the case against the Fastweb management collapsed, and their CEO gave interviews in Italian media protesting at the treatment he had received.

While the investigation/prosecution was still underway, the judicial investigators had found Colin Dines's name in some of the Fastweb papers, and said "Let's call him in for questioning". So they issued an EAW against him, as well as his son and two other Englishmen. The story got some coverage in the Daily Mail and the Telegraph, but did not make many significant waves. Dominic Raab, his MP, raised it in Parliament, and said later "The case has stuck not only in my memory but also in my throat"; it may be hoped that now he is Justice Secretary, it will be possible to lay the ground to remedy situations such as this.

As I understand it Colin Dines had a heart attack on the eve of his extradition, so was not himself extradited, though his son Andrew and two others were. They suffered over a year of preventive detention in Rome, first in prison and later under house arrest in a hotel, and were then induced to accept a shortened sentence of some three years in exchange for not putting up a defence, which meant they could go straight home, since the last two years of their sentence could be suspended. They were told by their Italian lawyers that under Italian law this did not mean they had admitted guilt. But later it emerged that they had been misinformed, and in the UK they were told that it did, and they were landed with a millionaire demand from an Italian court to pay back the "proceeds of their crime". This demand was confirmed by a UK Court.

Meanwhile Colin Dines himself, having had a heart attack on the eve of his extradition which therefore did not take place, was tried in Italy - in absentia, which is allowed under Italian law - and found not guilty (as indeed were the Italian defendants in Fastweb). No confiscation order was issued against him.  

It can here be seen here that a gross injustice against the other three was caused, against which the ECHR offered no remedy.

The lack of Habeas Corpus in continental Europe and the failure of the European Convention and Court on Human Rights to safeguard innocent suspects from very lengthy months and sometimes years of preventive detention, is apparent.

This failure is masked by the Convention's use of the highly elastic weasel word "reasonable" in article 6. Hours or at the most a few days are thought "reasonable" in the UK, whereas for the ECtHR, as we have seen, it is thought "reasonable" for a suspect to wait up to 5 years in prison for his first public hearing in open court. This prospect of apparently endless pre-trial detention was used, with deception, to pressure Andrew Dines and the two others into accepting what turned out to be a plea bargain, which did release them from their state of detention allowing them to go home at once, but left them with a criminal record and a multimillion pound liability to "pay back the proceeds of their crime".

- Andrew Symeou: This case is well-known as an instance of injustice perpetrated by the European Arrest Warrant which requires no evidence of guilt to be shown by the requesting country to any court in the country being requested to extradite a person. We are told, by Policemen's associations and other interested parties, that we must keep the EAW as is, because it provides a "streamlined" extradition system. This must sound brutally ironic to someone like Andrew Symeou, who after a swift extradition from the UK to Greece, was then held in a dreadful prison for 11 months, before his first public hearing, where the case against him collapsed completely and was dismissed owing to lack of any credible prosecution evidence. The only evidence in fact had been beaten out of his friends by Greek police, who made them sign identical statements in Greek, a language they did not understand, and which they retracted as soon as they had reached the safety of England. If only the Extradition Act 2003 had allowed a UK court to examine the evidence against him, his troubles would have been over in a few days. The proceedings would have been far more "streamlined"...

As it was, the ECHR provided no remedy against his detention for 11 months with no public hearing - indeed that Court as we have seen provides up to 5 years as "reasonable" since "detention is intended to facilitate the preliminary investigation". In fact Andrew's lawyers,nboth in England and in Greece, did not even apply to the Court, since it was obvious that it would provide no remedy.

- Prof. Clara Ponsati: A Catalan lady in her sixties working as an Economics professor at St Andrews University, she had been a member of the Catalan government of Sr Puigdemont, which attempted, by peaceful means, to establish the independence of Catalonia from Spain (rather as the SNP has tried to take Scotland away from the UK). She was arrested in Scotland on an EAW from Spain, which charged her with the crime of "violent rebellion", carrying a potential sentence of around 20 years. Unlike the Basque movement ETA, the Catalans only used peaceful methods, such as a referendum which was obstructed by the Spanish Guardia Civil which baton-charged citizens in the street to stop them from going to cast their votes. Other members of the Catalan government were arrested in Spain and held for many long months in prison before being convicted to lengthy prison sentences.
The ECHR offered no remedy, and AFAIK her lawyers did not even try to avail themselves of its services. At no time did she or her associates advocate, let alone practise, violence in their pursuit of Catalan independence. The action by Spain was clearly a violation of her political freedom, and of her right to freedom of expression (art. 10).

There are many other innocent victims of European Arrest Warrants, extradited from Britain  who faced long months in continental jails before the lack of evidence caused the case against them to collapse. Fair Trials Abroad has concerned itself with numbers of cases, and will have a list of them, with details.

- Chris Lees, a Gloucestershire estate agent working in Spain, who was falsely accused of drug dealing, arrested and beaten up by the Guardia Civil and held for over 1 year with no public hearing. At his first public hearing the case against him was dismissed for lack of evidence. His case was related in detail by him in a full-page article in Freedom Today, around 20 years ago, I think, during the time of Norris McWhirter. No remedy was available from the ECHR.

- 1000 persons locked up for long months every year "pending investigation", eventually declared to be innocent, but whose lives, livelihoods and reputations are thereby ruined. It is mentioned in my latest article in The Express ( https://www.express.co.uk/comment/expresscomment/1716882/echr-european-court-convention-on-human-rights-and-Britain-EU-latest-Brexit-news ). This is the figure for Italy, where it has been documented by the small but significant Radical Party, and was shown on Italian State TV by the journalist Alberto Matano in two ten-week series of weekly broadcasts, titled "I am innocent" ("Sono innocente"). Each week he interviewed two - innocent - victims of the system who told their harrowing stories.
The ECHR was never mentioned during the broadcasts, for this type of practice is obviously not covered by the European Convention on Human Rights. It is clearly not confined to Italy, but is common practice in many if not most European States which are governed under the inquisitorial system of criminal justice. Under the UK’s Extradition Act 2003, all EU states are exempted from having to present any indication of evidence of a prima facie case when requesting the extradition, or as it now called, the "surrender", of a suspect. Despite Brexit, the government have confirmed this exemption to still be in force, when replying to two Parliamentary Questions, from Lord Pearson in 2020 and last year from Lord Moylan. Under that Act, every year the UK hands over people with no evidence provided and no questions asked. Numbers of those thus "surrendered" turn out eventually to be innocent, yet they are cast into this sort of meat-grinder.

The Universal Declaration of Human Rights does ban "arbitrary" arrests and imprisonments in its article 9.

The ECHR does not. In addition the implementation of the UDHR, if embedded in a new British Bill of Rights, would be adjudicated by UK courts, not by a foreign court made up of the political nominees of 46 countries, some with pretty dodgy human rights records of their own. The UDHR could therefore be used by the UK as an international bench-mark.

It would then be obvious that by leaving the ECHR, and replacing it with the UDHR, the UK was not “scrapping human rights”, as is currently claimed, but restoring and enhancing them.

©Torquil Dick-Erikson, 14/03/2023. 

Torquil Dick-Erikson specialises as a legal journalist in comparative criminal procedure and is author of The European Constitution against the British Constitution (2004) and The Coming Tsunami (2010) about the very different systems of criminal justice and of policing that the UK might have thrust upon it from Brussels.