Critics of the European Convention on Human Rights are legally off the mark and are also distorting facts.

Four Dutch-based legal scholars* underline that the Convention’s benchmarks are still as relevant today as they were during their inception in the 1950s, and are certainly not superfluous.

In their opinion piece "Rein in the European Court" Stef Blok and Klaas Dijkhoff, respectively chairman and member of the VVD Party’s parliamentary faction in the Dutch Lower House, call on European countries to curb the role of the European Court of Human Rights. Contrary to what Blok and Dijkhoff contended, their opinion does not have a solid legal basis. Instead they base their party’s point of view, which they would like other European countries to adopt, on poor legal arguments. They also presented the Court’s practices and its decisions in a distorted manner.

Blok and Dijkhoff said that the European Convention on Human Rights, approved by the Dutch Lower and Upper houses in 1954, is already outdated. A number of Western European states coined the Convention as a reaction against the atrocities committed during World War II, and the gross human rights violations which occurred in occupied territories.

Human rights do not get outdated. Judges must interpret these rights in accordance with current conditions and circumstances. For example, the inviolability of letters has a different interpretation in 1954 than it does in 2011, although its basic protective ideas remain the same. The ECHR is careful in interpreting the Convention. The Court deems some of the rights of such importance that they must be enforced in all of Europe. Examples of these are protection against inhumane actions, freedom of expression and the right to privacy. Other elements in the Convention are closely intertwined with certain countries so that the Court watches their enforcements from a distance. In other words: the margin of appreciation is already ample.

The Court ‘s decisions can also be appealed at a Grand Chamber presided by 17 judges. Particularly in cases related to the margin of freedom in national policies, the Grand Chamber sometimes comes out with decisions which differ from the Court. Take the Hatton case, cited by Blok and Dijkhoff as an instance where the Court overreached its jurisdiction. In this case, the Grand Chamber decided not to look into the UK environmental regulations - cited by London to protect residents from noise pollution of night flights coming into Heathrow airport - precisely because they are viewed as being part of a national government’s freedom to carry out its policy regulations. This is the exact opposite of what Blok and Dijkhoff had implied.

The VVD politicians further argued that the Court was in violation of the trias politica. Thus, they suggest that the Committee of Ministers should issue resolutions which would tell the Court how it should interpret the Convention. Here the politicians have clearly mixed up judicial and executive roles. Judges operate independently from politics, while the executive power is supposed to follow political instructions. In addition to being legally incorrect, Blok and Dijkhoff are also distorting the facts. The Committee of Ministers regularly issue resolutions relating to the Convention. The Court, in turn, carefully takes these resolutions into account when giving its interpretation of the Convention. In virtually all the decisions deemed ‘too political’ by the two authors, the Court had based its sentences partially on resolutions issued by the Committee of Ministers on the subjects.

Notably, the two authors cited the MSS/Greece and Belgium case as an example of how the Court went wrong. The result of the Court’s decision would be that the European asylum policies would have to be reconsidered, they say. The case dealt with an Afghani asylum seeker who first arrived on EU soil in Greece. According to a unanimous decision by the Grand Chamber, the asylum seeker was subjected to inhumane treatment in Greece according to article 3 of the Convention. The Afghani later ended up in Belgium. Brussels wanted to return the man to Greece, based on European asylum policies which allow member countries to return asylum seekers to the first EU port of entry. However, Belgium was unable to avoid its obligation to abide by article 3 of the Convention. Belgium had to take the situation in Greece into account.

It is unlikely that Blok and Dijkhoff would assert that views on inhumane treatment of foreign nationals have changed to such an extent since 1954 that Europe, in carrying out its asylum policies in 2011, no longer have to take article 3 of the Convention into account. But then the two authors would have to lay a better foundation to support their views before they can convince ministers to go to the European platform and change the European Convention on Human Rights.

*Egbert Dommering is emeritus professor of information law at the University of Amsterdam
Wouter Hins is professor of media law at Leiden University
Rick Lawson is professor of European law at Leiden University
Jit Peters is emeritus professor of constitutional law at the University of Amsterdam
=============================================