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Letter to Petition Chairman Mr N Gemelli Chairman of the Committee on Petitions European Parliament L2929 Luxembourg 10th November 2003 Dear Mr Gemelli Re: Petition to European Parliament
This petition raises very serious questions regarding protection of the rights of EU citizens as presently afforded by the Charter in addition to those customary rights afforded by the Convention. It is our contention that an accession to the Convention will remove rights presently available under the Charter within the context of EU legislation. Analysis of a cross section of cases does not inspire
confidence in the mechanism of ECtHR as our research showed varying
interpretations of the Convention by the Court. This therefore
leads to the conclusion that rights of EU citizens cannot be entrusted
in the hands of an unaccountable, secretive, dictatorial intergovernmental
organisation, whose interpretation of Articles 6, and 19 of the
Convention is dependent on the “mood” of the Rapporteur/Court
as analysing a number of cases show that interpretation is inconsistent
thus enabling the courts of member states to abuse their power
with impunity. Rule 49 of the ECtHR stipulates that all statements of the Rapporteur’s report shall contain relevant facts of the case. However it is a matter of public record that the Rapporteur’s report is secret and inaccessible to the public, and more importantly the applicants. It is easy to demonstrate that the Court’s decision based on these secret reports not only does not contain relevant facts of the case but also contains false materials, knowingly introduced by the Rapporteur, and used in order to dismiss valid applications made under Article 34 of the Convention claiming violation by the member states of rights protected by the Convention. We make a series of very strong allegations and statements regarding the administrative fraud within ECtHR and the flaws in the interpretation of ECHR. It is of public importance and interest that the issues raised in this petition are debated within the European Parliament before EC/EU deceives on the question of accession as it is my considered opinion that accession will affect the rights, currently protected by the Convention and the Charter, of every EU citizen.
Thank you for your attention and we look forward to your confirmation to have our petition entered in the general register.
Dr K S Badsha MSc CChem MRSC MAE Enc. Front
page of Petition EC/EU Accession to the European Court
of Human Rights ECtHR Violations Against:- Community Legislation} International Conventions} Date: 10th November 2003 Registered Charity No 1070108: Company
No 3517340 Petition to European Parliament INTRODUCTION 1. This petition is based on the numerous documented telephone calls and documents provided to the Environmental Law Centre by EU Citizens, concerned that their only avenue to seek fair hearing and effective remedy within EU in the context of EU legislation will be taken away if Part 1 Article 7.2 of the Draft Constitution is implemented and all aspects of rights comes under the jurisdiction of the European Court of Human Rights (ECtHR). 2. Furthermore with the advent of emails and world wide webs, it is increasingly difficult for officials to hide wrongdoings and ECtHR in particular must be aware of the number of websites appearing alleging human rights abuses by ECtHR. 3. This petition is supported by documents confirming that the European Court of Human Rights (ECtHR) is not a court that has regard to the Convention Articles, and relies on “secret reports” to which Applicants have no access and thereby are denied any opportunity to question any inaccurate information at the admissibility stage. The supporting documents will show that many decisions and judgements of the ECtHR are not compatible with the rights guaranteed by the Convention. 4. The ECtHR was the first international human rights court, and is the only human rights court before which cases may be initiated by individuals directly claiming a violation of human rights by a State. 5. The Interights Report of May 2003 - Judicial Independence: Law and Practice of Appointments to the ECtHR (Appendix 2) points out that “As a leading human rights court internationally, it would be anomalous and unacceptable if appointments to the Court failed to meet the international human rights standards that it is charged with implementing, including those requirements relating to the independence and impartiality of judges. In addition, flawed appointment procedures leave open the prospect that judges selected will lack the requisite skills and abilities to discharge their duties. This risks having an adverse effect on the Court’s standing and on the development of authoritative human rights jurisprudence in Europe.” 6. One of the key problems pointed out in the Report is that nominees from member states often lack the necessary experience and even fail to meet the very general criteria set out in the Convention. 7. The Report further states: Article 21(1) of the Convention establishes the formal criteria for appointments to the Court: The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence. These terms are commonly used in respect of international courts and tribunals. Accordingly, it is often suggested that States ‘know what they mean’. That said, they are undefined and aspects of their scope remain unclear, possibly laying the foundation for the nomination or election of unqualified or otherwise unsuitable candidates. The criterion of “high moral character” is vague and general. In a recent case, a State justified the omission of its sitting judge from its list of candidates on the basis that he was not of “high moral character”. The allegations made against the judge were widely considered to be baseless, but the State maintained that it was upholding its obligations under the Convention by excluding him from its list. The only safeguard in the procedure lies at the Sub-Committee level. Regrettably, this mechanism is at best limited, and at worst is fundamentally flawed. The Sub-Committee consists of parliamentarians, most of whom lack human rights or international law expertise. 8. Paradoxically this raises the question how can the Court monitor and enforce national court compliance with these standards, when the Court itself fails to meet international human rights standards and is on record as saying that “it is not itself a party to the Convention”. 9. For a court professing to be a guardian of Human Rights whilst paying scant regard to Convention Articles and rely on dictatorial techniques ie “secret reports” by the Rapporteur and further informing applicants, “This decision is final and is not subject to any appeal either to the Court or to any other body.” questions the high moral ground that this Court professes to uphold. ECtHR as a Human Rights custodian interprets: - “Article 6 of the European Convention on Human Rights as requiring that civil rights and obligations shall be determined by an “independent and impartial tribunal”. It further qualifies this by underpinning that for a Judge to be independent depends on the manner of appointment, the term of office, the existence of safeguards against outside pressures and whether there is an appearance of independence. 10. If this criteria is then applied to the custodian court ie ECtHR, judges to the Court are appointed by States submitting the names of three candidates. This raises the question of independent accountability of high standards of judicial independence and effective protection of rights by the convention, judges deciding disputes “without fear or favour, affection or ill will”. The basis of this petition disputes the accountability and independence of these judges and or the Court’s officials. 11. While it is proper to be vigilant and condemn any threat to the independence of the judiciary in national courts, the Court’s own members are appointed through a system that contains no adequate safeguards against political interference and appended documents shows that national judges introduce purported evidence” to discriminate and violate human rights of individual EU citizens, in the knowledge that ECtHR will aid and abet this. 12. It is a matter of public record that the ECtHR court officials are on record as saying “The Court, (ECtHR) as the supervising judicial organ, is not itself a party to the Convention.” 13. In an attempt to rectify this anomaly, the attention of Secretary General of the Council of Europe (COE) and Secretary General of the Parliamentary Assembly has been drawn to occurrences of irregularity and impropriety within the ECtHR but there has been no response to-date. 14. This serious matter has also been drawn to the attention of other responsible bodies such as the DG I - Legal Affairs, Committees of COE such as Directorate for Legal Co-operation, Efficiency of Justice - Legal professionals, Administrative law and justice, The European Commission for the Efficiency of Justice, Directorate General of Legal Affairs, European Commission for Democracy through Law, Group of States against corruption, Members of Political Affairs Committee, Members of Human Rights Committee and the Steering Committee for Human Rights (CDDH). To-date we have not received any response. 15. All members of the Parliamentary Assembly and members of Committee of Ministers and Permanent representatives of the COE have been informed of the irregularity and impropriety occurring within ECtHR and the abuse of power. Decisions are made at the admissibility stage based on secret reports that are openly denied to applicants by the Court and officials are on record as stating that they do not have to comply with the Convention Articles. This action of the Court officials is incompatible under Rule 49 of the Court but there is no independent mechanism whereby it can be independently investigated. 16. Finally all members of the European Parliament have also been informed of the abuses occurring within the ECtHR and have been requested to take an active role in preventing EC/EU accession to the ECHR via Article 7.2 of the Draft Constitution until the ECtHR has introduced safety measures to ensure the protection of human rights and respect for the Rule of Law that is intrinsic in the Convention itself. 17. Most interestingly if actual submissions to ECtHR and subsequent Decisions are critically analysed, it shows that material knowingly to be fallacious is introduced by the Rapporteur into his secret reports in order to enable the dismissal of valid applications under Article 34 of the Convention. 18. Requests have been made to the Secretary General of the COE that the immunity of the Court officials under the Statute of the COE be removed for those who misbehave and misuse their office but with little success. 19. We have further asked members of the Committee of Ministers to seek advisory opinions on the interpretation of the Convention Articles and the protocols but once again we have been given nothing but excuses. 20. The extensive damage done to the rule of law by
the misinterpretations occurring, misinterpretations by the Court
incompatible with the Convention Articles particularly Articles
6 and 19, must be corrected before the situation becomes irreparable;
as a domino effect will occur throughout the judiciary of all the
Member States, as well as in the interpretation of the Convention,
seriously affecting the respect for law as well as faith in the
rule of law protecting 380 millions of EU citizen’s rights. BASIS OF THE PETITION 22. In order to reinforce the general principle that the European Union respects human rights and fundamental freedoms, a principle upon which the Union is founded (Art 6 TEU), we asked the Committee on Petitions to refer this serious issue to Parliament for debate as the outcome will affect all EU citizens and is of public interest and importance. 23. Current interpretations of the Convention Articles
by the ECtHR bring the credibility of the intergovernmental organisation,
the COE under the spotlight. In view of this, can EC/EU still go
forward with accession to the ECHR when there are questions regarding
the functioning and accountability of the ECtHR which cannot withstand
public scrutiny? “Unfortunately, evidence is steadily and increasingly
surfacing of widespread corruption in the courts in many parts of
the world.” 31. Yet according to the communication from the Court to all applicants, “In accordance with the Rules of Court, a judge of the Court, acting as Rapporteur, will carry out a preliminary examination of this application and report to the Court on the question of its admissibility.” 32. This raises a serious question concerning which Rules of the Court authorise, or instruct the Court to appoint, a judge of the Court acting as Rapporteur to report in secret to the Court on the question of admissibility of an application, when clearly Article 28 and Article 29 of the Convention state the admissibility of any application is to be determined by either the Committee or the Chamber. 33. While Rule 49 (c) of the Court states “Where a case is considered by a Chamber pursuant to Article 29 §1 of the Convention, the report of the Judge Rapporteur shall contain a proposal on admissibility and on any other action to be taken, together, if need be, with a provisional opinion on the merits.” Neither the Rule of the Court nor the Articles of the Convention authorise the Judge Rapporteur to report to the Court on the question of the admissibility of the application yet this is what is happening; which means the admissibility of an application is being decided by the single judge Rapporteur relying on his secret report which cannot be questioned. 34. It would appear from existing communications from
the Court that the practice of the Court is to permit decisions
on admissibility to be taken by a committee consisting solely of
senior Registry officials - this is a Court practice which is not
authorised by the Articles, Protocols or Rules of the Convention.
The Registrar is on record as having purported to have the power
to determine the basis and merit of applications submitted by applicants. 41. Below are some of the cases that were critically examined in relation to applications submitted and the Decisions given. These are only a small selection of recent and commonly occurring archetypal cases. In reaching its decisions and judgements the Court has given no regard to the rule of law and established case law, neither to rights protected and guaranteed under the Convention, UDHR, the EU Charter and Community Legislation.
Background The matter is being petitioned to the EU Parliament as there are no other avenues left for human rights violations suffered by the Applicant. The Application has been given the following Petition No. 106/2003 (ii) Case 2 (For details of submission to ECtHR please see Appendix 3.2) Background Since 1996, the applicant had been subjected to domestic violence and abuse at the hands of his mentally ill wife. The children were taken away from him. The court disregarded all of the medical evidence (well documented), the facts of the case and the genuine and serious concerns for the children’s welfare, and acted against the interests of the children, failed to protect them from the mother and failed to prevent the mother’s abuse of the children from taking place, but acted to allow it to continue. It is public record that the court has made reference to hearings that have never taken place; introduced purported evidence; ignored concerns for the children’s safety, accepted the mother’s false unsubstantiated allegations without question and without evidence, whilst condemning the father’s professional training in child welfare. The matter was referred to the ECtHR in 2003 alleging that the UK courts had diverted from the true issue and had ignored pertinent evidence. It was also alleged that relevant factors were not taken into account and that the evidence had not been examined. As a result of which serious harm had been caused to the health and stability of the children and to the family life of the Applicant and his children. Decision: The ECtHR dismissed the application in their letter 8th July 2003. A request was made for reasons for the decision, under Article 45. To date the ECtHR have not acknowledged nor responded to the request; yet reasons for dismissal are a right guaranteed by the Convention under Article 45.
Background It was alleged that the emissions from this paint
spraying factory caused serious health damage and serious disruption
to the family life of the applicants and that the paint spraying
factory did not have the benefit of planning permission to operate. We brought to the President of the Court’s attention the serious mistakes in the facts of the case upon which the decision had been based as there has never been planning permission for the factory to operate either the processes they were using nor on the premises they were operating in. We informed the Court that basis of the application was relating to the officers abuse of their power by purporting there was planning permission when there was none; and not a matter of a negligence in the grant of planning permission issue as had been imposed upon the applicants by the Court as there had never been an application for planning permission made for the operations being carried out, or for the building in which they were taking place. On the 5th July 2001 ECtHR dismissed all supporting evidence that there was no planning permission and introduced the concept of “flexi planning permission legislation” to reach the decision that the development benefited from planning permission Application No: 41671/98). Subsequently it was pointed out that the Court could not have taken all the documents into consideration (Application No: 75341/01), on the 8th July 2003 ECtHR acknowledged that, contrary to their decision of the 5th July 2001, the Applicants’ contention that there is no planning permission granted to the past and present industrial developments was correct. However this time the Court reached another decision stating “even assuming that Unit 2 was not covered by the original planning permission given to Mr Brennan, it could not be inferred that the Council acted otherwise than under a bona fide mistake in respect of the planning situation with respect to Unit 2”. Ignoring the fact that the Council repeatedly changed its position on three occasions so as to divert the issue before the nationals courts who were only too willing to participate in the cover-up. Decision: In its dismissal of the application, the Court applied Article 6 stating “Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts” The Court also applied Article 19 of the Convention stating “According to its established case-law, it is for the domestic authorities and in particular the courts to establish the facts of a case in the light of the arguments and evidence submitted to them and the Court is not competent to deal with an application alleging that errors of law or fact have been committed by the domestic courts”. (iv) Case 4 (For Details of submission to ECtHR please see Appendix 3.4) Background The Federation further for many years advertised “Join the Federation and you get the following benefits free!” …….“Payment of legal and accountancy costs up to £35,000.00 in dealing with an in-depth Inland Revenue investigation and also other benefits”. At no material time was it or has it been stated or written that this promise was subject to any terms and conditions. The applicant was subjected to Inland Revenue investigation in 1996 and asked for assistance. The request was denied with the accusation that the applicant had committed fraud. After spending a considerable amount of his own money the applicant was proven innocent and gained apology from the Inland Revenue. The applicant returned to the organisation requesting reimbursement of the costs he had paid out. The Federation’s refusal to provide the help they had promised to refund expenses resulted in legal proceedings. The organisation refused the request and informed the courts that they were not the correct defendant and that the applicant should sue the organisation’s contracted service provider, their insurer, to recover the costs. Upon appeal, the court of appeal stated “in my judgement, for the District Judge to say that the extent of the obligation is merely to introduce X (the Applicant) to an insurance policy is wrong both in law and in fact”. The matter was returned to lower court for quantum but the lower court stated “An effort was made to strike out your claim on the grounds that you’d sued the wrong party. One judge said that was absolutely right. Another judge said, “Well, I’m not going to strike the claim out, let the matter be heard.” Now the matter has been heard and I’ve decided that the first judge was right. And if you don’t like my judgment then you must approach the Court of Appeal and ask them for leave to appeal.” Following on from this legal action, the organisation also removed all benefit and indemnity cover that is provided within the membership package from the applicant, who remains to date a fully paid up member of the organisation. An application was made to ECtHR in 2002 in a civil determination against the organisation for breach of contract. It was alleged that there was breach of the rights guaranteed by the Convention. It was also alleged that there was breach of EC Directive 84/450/EEC relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising, and also breach of EC Directive 93/13/EEC – on unfair terms in consumer contracts Decision: In the decision of ECtHR, it concluded that despite the applicant paid his membership to the Organisation, his contract is with the organisation’s contract service provider ie the insurance company. For this reason, ECtHR dismissed the claim that there was breach of contract and/or breach of Community legislation EC Directive 84/450/EEC and EC Directive 93/13/EC. (v) Case 5 (For Details of submission to ECtHR please see Appendix 3.5) Background In this case, the House of Lords did not make any request for submission from the respondent. Yet after the applicant was refused leave from the House of Lords, the respondent without notification to the applicant’s solicitor of costs, applied directly to the House of Lords taxation officer for their costs. The applicant’s solicitor states in his letter
“the taxation officer said that the bill was only about £2,000
which was minimal for anything in the House of Lords and consequently
it would be allowed in full. If I did not like the system of the
Respondent getting their costs before the House gave leave, then
I would have to complain elsewhere….” DECEIT WITHIN THE COURT’S INTERPRETATION OF THE CONVENTION 42. At the present time the Court’s interpretations of ECHR are inconsistent, contradictory and not compatible with the rights guaranteed by the Convention, nor are they compatible with the rights guaranteed by the Charter; and are also in violation of Articles 7, 8, and 10 of UDHR. Without safety measures being introduced to the new reform protocol, the rights guaranteed by the Convention and the Community Legislation are subject to abuse without redress. 43. Documentary evidence to support the above allegations is presented below. 44. In the letter dated 1st August 2002 the ECtHR states “The Court, as the supervising judicial organ, is not itself a party to the Convention.” i.e. the Court does not have to give regard to the Convention in its deliberations. 45. We understand under the Convention, that an application under Article 34 can be struck out only after it has been registered with the Court’s list of cases. The Court then can give reasons why it is no longer justified to continue the examination of the application or why the application is made inadmissible under Articles 28 or 29. The Registrar as we understand matters, does not have authority or remit to refuse applications under Article 34 unless the applicants have failed to comply with the requirements set out in paragraphs 1 and 2 of Rule 47. Under Rule 52 of the Court, the application submitted by Applicants under Article 34 must therefore be assigned to a Section by the President of the Court before being registered. However it is a matter of public record that Applications made under Article 34 of the Convention complying with the requirements set out in paragraphs 1 and 2 of Rule 47, were dismissed without being registered. 46. Furthermore Article 40 (1) of the Convention states “Hearings shall be in public unless the Court in exceptional circumstances decided otherwise.” but applicants do not have any right to attend the Court’s hearings. The Court does not inform applicants when the hearing is taking place. The hearing is kept secret. 47. All applications regarding admissibility are dealt with on the basis of “secret reports” produced by a Rapporteur. No applicant has access to these “secret reports”. Also the so called ‘facts’ of the case contained in this “secret report” are not subject to challenge even if the Court been informed that statements based upon false materials which were introduced by the Rapporteur and the introduction of these false materials constitute a serious violation of the individuals’ rights as guaranteed by the Convention. 48. Furthermore this Court procedure is not compatible with Article 40 (2) of the Convention which states “Documents deposited with the Registrar shall be accessible to the public unless the President of the Court decides otherwise.” And Rule 17 (2) of the Court states “The Registrar shall have the custody of the archives of the Court and shall be the channel for all communications and notifications made by, or addressed to, the Court in connection with the cases brought or to be brought before it.” Surely these communications and notifications would include the instructions from the Court and the Rapporteur’s secret report to be challenged not hidden or restricted. 49. Rule 49 of the Court states “Where a case is considered by a Chamber pursuant to Article 29 §1 of the Convention, the report of the Judge Rapporteur shall contain (a) a statement of the relevant facts, including any information obtained under paragraph 2 of this Rule; (b) an indication of the issues arising under the Convention in the application; and (c) a proposal on admissibility and on any other action to be taken, together, if need be, with a provisional opinion on the merits.” 50. It is important to note that Rule 49 (a) specifies that the report contain a statement of the relevant facts of the case. It does not authorise the Rapporteur to introduce statement of false materials as facts of the case. However, when the Court has been informed that statements in the Rapporteur’s secret report based upon false materials which were introduced by the Rapporteur himself and that the introduction of these false materials constitute a serious violation of the individuals’ rights as guaranteed by the Convention, instead of investigating the matter the Court’s response was to automatically dismiss the application. Furthermore the Rapporteur’s report appears to decide the admissibility of application rather than being just a proposal on admissibility. 51. Rules 80 and 81 give the provision for the request for revision of a judgment and rectification of error in decisions and judgements, stating “Without prejudice to the provisions on revision of judgments and on restoration to the list of applications, the Court may, of its own motion or at the request of a party made within one month of the delivery of a decision or a judgment, rectify clerical errors, errors in calculation or obvious mistakes.” Despite these provisions such right has often, by the Court’s own records, been seen to have been denied to applicants by the Court without any reasons given. Even in cases where it is clear and obvious that the ‘facts of case’ are inaccurate and false there is no right of appeal to the Court or to anyone else. 52. Article 19 of the Convention states “to ensure the observance of the engagements undertaken by the High Contracting parties in the Convention and the Protocols thereto, there shall be set a European Court of Human Rights, hereinafter referred to as “the Court”. 53. In its interpretation of Article 19 of the Convention, the Court has stated “The Commission recalls that, in accordance with Article 19 (art.19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts.” Even, it would seem, when such errors are on public record and are in violation of rights guaranteed by the Convention. 54. In its interpretation of Article 19 of the Convention, the Court has further stated “According to its established case-law, it is for the domestic authorities and in particular the courts to establish the facts of a case in the light of the arguments and evidence submitted to them and the Court is not competent to deal with an application alleging that errors of law or fact have been committed by the domestic courts”. 55. The ECtHR has also stated “In any event, and as stated earlier, it is not for the Court to establish the facts or to conclude that, in so far as the facts have been established, that the domestic courts erred in their approach or their assumptions” 56. Article 6 (1) of the Convention states “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” 57. However according to the Court’s interpretation “Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts”. 58. Below is a summary of how the Court in its decisions has interpreted Articles 1 Protocol 1, Articles 6, 13, 14, 17, 19, 34, 53, Rule 49, Rules 80 and 81 in a manner that is not compatible with the rights guaranteed by the Convention. 59. Article 1 Protocol 1 states “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.” However such rights can be seen to have been removed from EU Citizens by the Court, through the abuse of power by officials of Member States. 60. Article 6 states “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” However in the fight for the determination of a victim’s civil rights any allegation regarding the lack of independence and impartiality of the courts of Member States will be dismissed, because “Article 6 of the Convention does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are primarily matters for regulation by national law and the national courts” and that “it is not for the Court to establish the facts or to conclude that, in so far as the facts have been established, that the domestic courts erred in their approach or their assumptions.” 61. Article 8 states “There shall be no interference by a public authority with the exercise of this right…” Yet it is a matter of record that when such interference occurs as a result of officers of a public authority acting in abuse of their power and also making fraudulent affidavit, the Court has granted blanket immunity. 62. Article 13 states “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Provision for effective remedy against abuse of power by persons acting in an official capacity as Local government officers and members of the judiciary was removed within UK Human Rights Act. Neither have we seen any such effective remedy made available to EU citizens when their rights as guaranteed by the Convention are violated. The inaccessibility of the “secret report” and lack of opportunity to challenge it by definition and by its very existence denies confidence in effective remedy, as afforded by the Convention, by the Court. 63. Article 14 states “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Cases can be shown to demonstrate that there has been serious racial discrimination by Member States and that the Court has reinforced such discrimination. The action of the Court also shows no regard to the EC Directive 2000/43/EC. The Court also shows no regard to violations of rights protected by the Convention and the Charter. 64. Article 17 states “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” However, as in many of the cases we have seen, this provision does not prevent the Court itself from abusing its power, resulting in the destruction of the rights protected by the Convention; including denial of the right of individuals claiming to be victim of violation, by one of the High Contracting Parties, of the rights set forth in the Convention or the protocols to make application under Article 34. 65. Article 40 states “Hearings shall be in public unless the Court in exceptional circumstances decides otherwise, and documents deposited with the Registrar shall be accessible to the public unless the President of the Court decides otherwise.” However, the Court violates Article 40 by denying the right for applicants to attend hearings and giving them no access to documents deposited with the Registrar, especially the Court’s instructions and the reports written by the Rapporteur appointed by the Court. 66. Article 45 states “Reasons shall be given for judgments as well as for decisions declaring applications admissible or inadmissible.” The Court in many instances has repeatedly violated Article 45, refusing to give reasons for a decision despite being requested to do so. 67. It is important for the members of the Committee and Parliament to note that the filtering system currently proposed and adopted by ECtHR, and which it is declared to be intended to filter out duplicated and hopeless cases, is in fact acting as a mechanism discriminating against most EU Citizens and furthermore gives an impression of transparency of justice when in fact it is not; leaving those EU Citizens who are victims of judicial corruption and abuse to face double punishment. 68. All the above are supported by documented evidence supporting the allegations and comments made in this petition. Copies are available if required. CONTRADICTORY AND INCONSISTENT INTERPRETATIONS OF THE ECHR BY ECtHR 69. It is important for the members of the Committee and Parliament to note that:- Statute of the Council of Europe London, 5.V.1949 Article 8 states: - “Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine.” Article 3 of the Statute states: - “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.” And Chapter I of the Statute states: - “This aim shall be pursued through the Organs of the Council by discussion of questions of common concern and by agreements and common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms”. Article 15 of the Statute states: - “On the recommendation of the Consultative Assembly or on its own initiative, the Committee of Ministers shall consider the action required to further the aim of the Council of Europe, including the conclusion of conventions or agreements and the adoption by governments of a common policy with regard to particular matters.” Article 41 of the Statute states “Proposals for the amendment of this Statute may be made in the Committee of Ministers or, in the conditions provided for in Article 23, in the Consultative Assembly. The Committee shall recommend and cause to be embodied in a protocol those amendments which it considers to be desirable.” 70. From the above, Committee of Ministers can request to have the rights of representation of a Member State withdrawn under Article 7 on the occasion that these Member States have seriously violated Article 3 of the Statute relating “to the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms; furthermore Chapter 1 of the Statute permits the organs of the Council by discussion of questions of common concern and by agreements and common action in the maintenance and further realisation of human rights and fundamental freedoms”, and under Article 10 the Committee of Ministers is the organ of the Council. It is therefore understood that the human rights and fundamental freedoms mentioned in Article 3 of the Statute are the same rights and freedoms defined in Section I of the Convention. 71. However Article 47 of the Convention states: - “The Court may, at the request of the Committee of Ministers, give advisory opinions on legal questions concerning the interpretation of the Convention and the protocols thereto. Such opinions shall not deal with any question relating to the content or scope of the rights or freedoms defined in Section I of the Convention and the protocols thereto, or with any other question which the Court or the Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention.” 72. In seeking advisory opinions, the Committee of Ministers is prohibited to raise any question relating to the content or scope of the rights or freedoms defined in Section I of the Convention. This means the Committee of Ministers can raise questions relating to the content or scope of the rights or freedoms defined in Section I of the Convention against other Member States but have no power to question the Court’s decisions. 73. And yet Article 15 permits the Committee of Ministers to consider actions required to further the aims of the Council of Europe, including the conclusion of conventions or agreements and the adoption by governments of a common policy with regard to particular matters. i.e. Article 15 empowers the Committee of Ministers to overturn the restrictions imposed in Article 47. 74. Furthermore Article 46(1) of the Convention states: - “The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 75. This raises the question how the Committee of Ministers can supervise the final judgments of the Court when they do not have the power to raise any questions relating to the scope of rights and freedoms of the Section I of the Convention, concerning the interpretation of the Convention in the judgment. Even in incidents where the decision of the Court is fraudulent and not compatible with the rights guaranteed by the Convention. Does this mean that the Committee of Ministers have to do what the Court tells them to do and they have no right to question the Court’s integrity or honesty in its interpretation of the Convention rights. The Committee of Ministers only having the right to criticise the Convention rights within Member States’ jurisdiction. 76. Because there is no provision for appeal, nor provision for safeguarding the rights the Convention guarantees, the Court can act above the law and create precedents not compatible with the Convention as demonstrated above. This is because there are no provisions similar to those in the ICC to investigate the misbehaviour of officials and judges nor is there an Ombudsman to investigate any complaint of irregularity and impropriety of the Institutions, as is available within the EU, to safeguard the rights Community legislation provides to EU citizens. ADMINISTRATIVE FRAUD WITHIN ECHR 77. Unlike the administrative procedures of EU, members of the institutions within the COE do not have to acknowledge or respond to queries, complaints or malfunctions brought to their attention. 78. Article 24 of the Convention states: - “No judge may be dismissed from his office unless the other judges decide by a majority of two-thirds that he has ceased to fulfil the required conditions.” 79. So although there is some implied protocol for the dismissal of corrupt or inept judges there are actually no provisions made for the instigation of such action against incompetent judges. Application concerning the issue of questioning judges on the issue of judicial administrative incompetence was made but only elicited the following response from the Court “it is not possible under the Convention to cite these bodies (COE and ECtHR) as respondents in a case. Your complaint would accordingly be considered incompatible with the Convention and thus inadmissible.” 80. Article 19 of the Statute of Paris, 2.IX.1949 states: - “Privileges and immunities are granted to officials in the interests of the Council of Europe and not for the personal benefit of the individuals themselves. The Secretary General shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the Council of Europe. In the case of the Secretary General and of the Deputy Secretary General, the Committee of Ministers shall have the right to waive immunity.” 81. With this in mind in our submission dated 20 August 2002 to the Secretary General we requested that the Secretary General waive the immunity of the Court Rapporteur and the Court Registrar for abuse of their power and their violation of the rights the Convention afforded to EU citizens. There has been no response or comment to date despite reminders having also been sent. 82. From our experiences the situation as it stands is that although Article 19 of the Statute gives the Committee of Ministers the right to waive immunity in the case of the Secretary General, Article 47 of the Convention prevents the Committee of Ministers from seeking advisory opinion to take any action against the Secretary General and there is no provision within the Convention to hold the Secretary General accountable for either lack of response or any other maladministration or breach of his remit, or failure to fulfil his duties. 83. Other submissions we have made and to which we have received inadequate or no response are as follows. 19/02/2002 Letter to Secretary General regarding the irregularity and impropriety of the UK Administrative office within ECtHR. (No response) 19/02/2002 Letter to Secretary General regarding the introduction of Provisions into ECHR to preserve the essence of Human Rights Conventions. (No response) 19/02/2002 Letter to Commissioner for Human Rights regarding the introduction of Provisions into ECHR to preserve the essence of Human Rights Conventions. (No response) 27/09/2002 Letter to DG of Legal Affairs Committee of Experts on the Efficiency of Justice regarding Abuse of Court’s (ECtHR) Power. (No response) 10/12/2002 Letter to Secretary General regarding irregularity and impropriety of the UK Administrative office within ECtHR. (No response) 10/12/2002 Letter to Commissioner for Human Rights regarding Judiciary corruption within ECtHR – availability of redress. (No response) 18/03/2003 Letter to DG I - Legal Affairs Directorate for Legal Co-operation regarding Judicial Corruption within the United Kingdom. (No response) 18/03/2003 Letter to DG I - Legal Affairs Efficiency of justice - Legal professionals regarding Judicial Corruption within the United Kingdom. (No response) 18/03/2003 Letter to DG I - Legal Affairs Combating Economic and Corruption regarding Judicial Corruption within the United Kingdom. (No response) 18/03/2003 Letter to DG I - Legal Affairs GRECO Secretariat of the Group of States against corruption regarding Judicial Corruption within the United Kingdom. (No response) 18/03/2003 Letter to DG I - Legal Affairs Administrative law and justice regarding Judicial Corruption within the United Kingdom. (No response) 18/03/2003 Letter to DG I - Legal Affairs The European Commission for the efficiency of justice regarding Judicial Corruption within the United Kingdom. (No response) 18/03/2003 Letter to DG I - Legal Affairs Administrator, Department of Public Law regarding Judicial Corruption within the United Kingdom. (No response) 18/03/2003 Letter to DG I - Legal Affairs regarding “Towards a better access to justice for the citizens” - Abuse of Court’s Powers. (No response) 14/04/2003 Letter to Mr Erik Jurgens, Vice Chairman, Committee on Legal Affairs and Human Rights regarding Judiciary Corruption within ECtHR. (No response) 18/04/2003 Letter to Mrs R Wohlwend, Chairperson, Committee on Legal Affairs and Human Rights regarding Judiciary Abuse/Corruption within ECtHR. (No response) 18/04/2003 Letter to Mr B Haller, Secretary General of the Parliamentary Assembly regarding Judiciary Abuse/Corruption within ECtHR. (No response) 18/04/2003 Letter to Mr W Schwimmer, Secretary General regarding Judiciary Abuse/Corruption within ECtHR. (No response) 09/06/2003 Letter to Steering Committee for Human Rights (CDDH) regarding Reform of the European Court of Human Rights. (No response) 15/08/2003 Letter to all members of Parliamentary Assembly regarding irregularity and impropriety within ECtHR and the interpretation of Article 6 and Article 19 of the Convention by the Court is not compatible with the right guarantee by the Convention. 15/08/2003 Letter to all Members of Committee of Ministers regarding the interpretation of Article 6 and Article 19 of the Convention by the Court is not compatible with the right guarantee by the Convention. The letter was also referred to the Steering Committee of Human Rights (CDDH) by members of Committee of Ministers. 18/08/2003 Letter to all MEP regarding the fraud within ECtHR and the danger of EC/EU accession to ECHR. 16/09/2003 Letter to all Members of Human Rights Committee of COE regarding ECHR-Reform protocol. 23/09/2003 Letter to Members of Political Affairs Committee regarding work together to build a just and equitable ECHR based on the Rule of Law. (No response) 23/09/2003 Letter to Mme Lili Nabholz-Haidegger Member of Committee on Legal Affairs and Human Rights, Vice-Chairperson: Sub-Committee on Human Rights regarding the Ombudsman role, asking her to extend her recommendations and remit in her report to establish Ombudsman institution within COE. (No response) 84. We have also received communications from members of Human Rights Committee confirming that our letters to them sent through the Parliamentary Assembly do not seem to have been forwarded to their attention. 85. Surely it would be detrimental to the cause of justice for the EC/EU to accede to a Court belonging to an intergovernmental organisation COE which can only lose credibility unless matters are put right so as to prevent further removal of human rights from EU citizens. WHY EC/EU CANNOT ACCEDE TO ECHR WITHOUT SAFEGUARDS 86. As stated earlier it is important for the members of the Committee and Parliament to acknowledge the flaws within the present interpretation of the Convention by their Court particularly of Article 6: - “Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts” 87. And Article 19 “According to its established case-law, it is for the domestic authorities and in particular the courts to establish the facts of a case in the light of the arguments and evidence submitted to them and the Court is not competent to deal with an application alleging that errors of law or fact have been committed by the domestic courts” even in issues in which the officers of local authority have purported to carry out their statutory duty and function and made fraudulent statements in their Affidavits to the courts. 88. Acceding to the ECHR when the Court acts in the manner we have demonstrated above would be a retrograde step in the path to justice and human rights for all citizens, serving only to benefit those few who have access to certain privileged legal representation. As documents support these privileged legal representatives have the power to influence the courts of the Member States to ignore true evidence, to adopt fraudulent affidavits and not to follow the rule of law, established case law and national legislation; and there is no redress against this behaviour, which by its own actions the ECtHR seems to guarantee. 89. The records further show that the ECtHR in dealing with applications has permitted the Member State to act in serious breach of EU treaties, regulations, decision and directives with impunity, and with no redress available to EU citizens. 90. The precedents that may be being set by the ECtHR in the case law on Article 6 and Article 19 will ensure that the EU will not be able to take measures against Member States which have infringed the principles laid down in Article 6 EUT, under Article 7 EUT and similarly under Articles 236(2) 309(2)) ECT because the interpretations of the Convention give Member States the right to adopt whatever evidence they wish to support their actions; with this evidence not subject to challenge. 91. Furthermore these actions of the ECtHR are incompatible
with Articles 7, 8, and 10 of the Universal Declaration of Human
Rights, which formed the basis of the COE considerations in the
creation of the Convention for the Protection of Human Rights and
Fundamental Freedoms in 1950. POSSIBILITY OF REMEDY AVAILABLE TO INDIVIDUAL COMPLAINANTS OUTSIDE THEIR MEMBER STATES 93. Although under Article 34 “the Court may receive applications from any persons claiming to be the victims of violation by one of the High Contracting Parties of the rights set forth in the convention or the protocols thereto.” In practice this is not true, as the right to this has been denied to many applicants. 94. When it is alleged that a Member State has abused its power, there is no remedy within the ECtHR because Article 19 is being interpreted by the Court as being: - “According to its established case-law, it is for the domestic authorities and in particular the courts to establish the facts of a case in the light of the arguments and evidence submitted to them and the Court (ECHR) is not competent to deal with an application alleging that errors of law or fact have been committed by the domestic courts” Even in issues in which the officers of local authority can be proven to have purported to carry out their statutory duty and function and made fraudulent statements in their Affidavits to the courts. 95. Although in accordance with Rule 49 of the Court, the report by the Judge Rapporteur shall contain a statement of the relevant facts, however the accuracy of these relevant facts of the case is unknown as the report is confidential and is not available to any applicants. Therefore any errors in the facts of case and/or law cannot be identified or corrected and put right. 96. At least in the EU there is an Ombudsman and the Petitions Committee before which grievances and injustices can be aired. 97. Should the EU accede to the ECHR under the recent proposals the only remedy that would remain available to individual complainants in UK via the International courts – would be via UN 1503 procedure; which is not satisfactory because the UK conveniently has not signed the Optional Protocol and therefore is not accountable. DIFFICULTIES THAT WILL OCCUR IN OBTAINING REDRESS IF EU ACCEDES TO THE ECHR 98. The interpretation of Article 6 by the Court states: - “Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts” 99. Furthermore the Court applies Article 19 of the Convention as: - “According to its established case-law, it is for the domestic authorities and in particular the courts to establish the facts of a case in the light of the arguments and evidence submitted to them and the Court (ECHR) is not competent to deal with an application alleging that errors of law or fact have been committed by the domestic courts” Even in issues in which the officers of local authority have purported to carry out their statutory duty and function and made fraudulent statements in their Affidavits to the courts. 100. Once EU/EC accedes to ECHR, the above interpretation will apply equally to Community Legislation and the Charter. 101. This means a Member State can adopt any evidence it wishes, no matter how unreasonable, in the interpretation and application of Community Legislation. Community Legislation will no longer be there to protect the rights afforded by the Charter. 102. It is important for the members of the Committee and Parliament to acknowledge that many applications are made to ECtHR because the applicants dispute the “truth” of the evidence the courts of the Member State adopt in their decisions and judgements. Similarly applications are made to EU because of dispute over the interpretation of Community Legislation by the Member States. 103. It is a matter of record that in the UK there has been an increase in the number of cases going on to Europe and in which it is abundantly clear that abuse of court power by the judiciary can be established. Too often resulting in members of the general public and their families suffering; - from permanent health damage, losing their homes, their businesses, have their property stolen by the authorities and the courts, falsely being made bankrupt by the courts and owners falsely evicted from their properties. Strong evidence shows that courts are guilty of the following: - - Making decisions based on documents that do not exist; - Diverting the basis of applications; - Refusing to record court proceedings; - Falsely imprisoning innocent victims; and - Allowing fathers to be falsely accused by their partners based on fraudulent evidence. 104. Often the court transcripts bear no resemblance to the actual tape recordings of the proceedings, as much as the judgments bear no resemblance to the submitted facts of the cases. A further insult and impropriety is that the courts accept affidavits from officers of the government even when they are known to be fraudulent. When perjury by the lawyers involved is brought to the courts’ attention, the courts ignore this. It is also common practise that litigants are denied the access to court files on their cases and where it is possible to see them, a range of falsehoods and fraudulent documents are found in these files – again the judges refuse to examine these matters when they are brought to their attention. The issues concerning the bias and corruption within the UK courts are endless. 105. To support our allegations in this communication we enclose summaries of a small cross-section of cases we have at hand exemplifying the extent and range of the suffering of victims of judiciary abuses. (Appendix 4 - ELC Report dated 21st February 2003 – The Jigsaw of Abuse and Corruption) However, if the Committee so requires, we are able to submit detailed reports of these and other abuses that have occurred through out the country. 106. It can be seen that many of the above cases are concerned with the interpretation of Community Legislation, and that also there has been a breach of EC Directives, Regulations, and Articles of Treaty with no redress available to the citizens involved. 107. If the EC/EU accedes to the ECHR, it will be possible for established case law of the Convention to be used or rather misused to prevent any redress that could have been possible, because it allows Member States to select and adopt evidence as they please with no right of appeal, even though the evidence be false and thus the decision reached based upon it is obtained by fraud and is in breach of rights guaranteed by the Convention as the Court has stated “it is not competent to deal with an application alleging that errors of law or fact have been committed by the domestic courts” 108. This will also have detrimental effects in the interpretation of Community Legislation in particular the following EC Directives which ECtHR have on record assisted and supported in the member states breach of: - (i) 84/450/EEC of 10 September 1984 Relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (ii) 93/13/EEC of 5 April 1993 – on unfair terms in consumer contracts (iii) 95/46/EC - on the protection of individuals with regard to the processing personal data (iv) 96/62/EC – On ambient air quality assessment and management (v) 85/337/EEC – on the assessment of the effects of certain public and private projects on the environment (vi) 90/313/EEC - Freedom of Access to Environmental Information RECENT TRENDS IN HISTORY OF THE ECHR 109. We understand that the UK was actively involved in an advisory role to the reform of the control mechanisms of the European Court of Human Rights in 1992 , resulting in the context of 1994 Protocol 11 of the Convention , bearing a close resemblance to the control mechanisms employed by the British judiciary. 110. As a result applicants can no longer be guaranteed that all details of the submission they make will be presented to the Court for consideration. Applicants can no longer be sure of the facts of their cases being accurately submitted within the Rapporteur’s secret report, to which even the applicant has no access, thus breaking the basic human right – right to fair trial guaranteed under the Article 6 of the ECHR, Article 10 of UDHR, Article 47 of the Charter of Fundamental Rights, Article 2 of ICCPR 1966 and Article 5 of ICESCR. 111. Article 17 of the Convention clearly prohibits the abuse of rights. When the applicants are no longer allowed to attend the Court, to challenge these secret reports, this begs the question , what is the difference between trials held in camera under a dictatorship and the ECtHR. In effect, the Court of Human Rights is denying the basic right, which is also a Customary Right’ i.e. the Right to a Fair Hearing. 112. The denial of Fair Hearing practised by the European Court of Human Rights, coupled with the inaccessibility of the Rapporteur’s secret report suggests the ECtHR is acting with a lack of independence and impartiality. It is indefensible when a Court exceeds its jurisdiction and acts against its own rules. The Court, as the supervising judicial organ, is not itself a party to the Convention – This does not inspire public confidence. When the Court informs applicants “This decision is final and is not subject to any appeal either to the Court or to any other body.” This lack of provision for appeal violates Article 13 of ECHR, Article 8 of UDHR, Article 4 of ICESCR, Article 2 of ICCPR and Article 47 of Charter of Fundamental Rights. 113. In 2001 the ECtHR adopted “flexi-planning permission legislation and justice” This Decision went against the established case law of Lopez-Ostra v. Spain 1994 and included the changing of the submitted facts of the case within the Rapporteur's secret report to the Court; A report which the applicant was denied access to or any opportunity to refute. 114. According to Council of Europe’s own figures between 1 July and 31 October 2001 the Court dealt with 3,868 cases. Of these only 5% were declared admissible. The ECtHR accepts that applications to ECtHR are dismissed at the admissibility stage, based on a secret report produced by the Rapporteur to the Court. A report that even the applicant has no right whatsoever to see and which breaches the Convention Articles 6, 14 and 17 and 40. Without the applicants having access to these secret reports, it would be further violation of Human Rights and denial of fair hearing if the Court is to establish a separate “filtering” mechanism to deal with the so called unmeritorious and repetitive or “clone” cases when in fact these cases are not unmeritorious and repetitive or “clone” cases, but are only continuing because to date there has been no fair hearing of the true issues of the case. 115. Even without the proposed amended protocol, the Court at this time, in breach of Rules of the Court, delegates the admissibility task to a single Rapporteur appointed by the Court whilst Article 28 and Article 29 of the Convention clearly state the admissibility of application is to be determined by either the Committee or the Chamber. EU COMMITMENT TO HUMAN RIGHTS 116. Prior to the 58th session of the UN Commission on Human Rights (CHR), the Council examined the action of the European Union in that forum, considered as a major element of EU policy in the defence and protection of human rights. It reaffirmed the Union's commitment to the principles of liberty, democracy, respect for human rights, fundamental freedoms and the rule of law, stressing the importance of the EU guidelines on human rights dialogue adopted in December 2001 and the permanent duty of all States to protect and promote human rights, fundamental freedoms and humanitarian law in compliance with the relevant international law. Adopted on 11 March 2002. 117. The European Parliament is on record stating it attaches great importance to the protection of human rights both inside and outside the Union, and uses its power of assent as one way of promoting respect for fundamental rights. One of the EU’s objectives is said to be to provide its citizens with ‘a high level of safety within an area of freedom, security and justice’, the European Parliament attaching great importance to the fulfilment of this goal. 118. The Treaty of Amsterdam gives a central role
to freedom and human and fundamental rights, ‘the Union is
founded on the principles of liberty, democracy, respect for human
rights and fundament freedoms, and the rule of law’. It would
not make sense for EU to accede to ECHR, the convention of an intergovernmental
organisation in which these principles are ‘seriously and
persistently’ breached by its own Court. 120. It is important to note that on 5-7 February 2003 at its first meeting since it was set up in September 2002, the European Commission for the Efficiency of Justice (CEPEJ) of Council of Europe undertook to look into the functioning of the different judicial systems on the basis of the problems experienced by European citizens. We placed a submission before the Commission which was ignored; we did not even receive an acknowledgement never mind a comment. 121. The CEPEJ also supply opinions upon request by
the Parliamentary Assembly of the Council of Europe, the European
Court of Human Rights, the appropriate Committees of the Council
of Europe, in particular the European Committee on Legal Co-operation
(CDCJ), the European Committee on Crime Problems (CDPC), the Steering
Committee on Human Rights (CDDH) and the Consultative Council of
European Judges (CCJE) and the Secretary General. 123. The EU should include the reform of the judicial system and the lack of independence of the judiciary, and the introduction of initiatives to foster more transparency in the ECtHR, as the corruption of power is a serious problem, and leads to many breaches of the Articles of EU Treaty. 124. The European Court of Justice (ECJ) recognised the existence of fundamental rights at community level at an early stage, and has steadily extended them. Under the Court’s continuing case-law, fundamental rights form part of the general principles of Community law and are accepted as equivalent to primary law in the Community legal hierarchy. 125. The source of recognition of these general legal principles being Article 6 (2) (F.2) of the EU Treaty, which commits the EU to respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. The Court of Justice has reaffirmed this EU obligation several times. 126. Article 6 TEU states that the Union is founded on the principles that include respect for human rights, to enforce which Article 7 TEU and similarly Articles 236(2) 309(2)) ECT enable the Council to take measures against Member States which have infringed the principles laid down in Article 6 TEU. 127. The EU accession to the ECHR as currently proposed will make this measure no longer available, as while this principle has never been infringed on paper, the ECtHR in a recent decision has already taken it upon itself to give the power to a Member State to adopt whatever evidence it wishes to. Thus while never infringing the principle on paper, in practice granting the ability to create facts of case. 128. As a democratically elected Community Institution, Parliament has recognised that it has a duty to see that fundamental rights and freedoms are protected and upheld. It is understood that Parliament has repeatedly adopted resolutions on respect for human rights in the European Union. It has stressed the need not only to safeguard credibility in the eyes of the outside world, by including a clause requiring respect for human rights in cooperation agreements with third countries, yet it itself is prepared to accede to the ECHR; which in the present judicial climate cannot ensure respect of the very basic requirements of respect for human rights – the right for a fair hearing and effective remedy. 129. The Charter covers rights in areas of human rights and the right to justice, as guaranteed by the European Convention of Human Rights adopted by the Council of Europe. Under the principle of universality, these rights should be conferred on all people, regardless of their nationality or place of residence. 130. In principle, the Charter represents ‘established law’, i.e. it gathers together in one document the fundamental rights recognised by the Community Treaties, the Member States’ common constitutional principles, the European Convention of Human Rights and the EU and Council of Europe Social Charters. 131. It establishes clearly that it aims only to protect the fundamental rights of individuals with regard to action undertaken by the EU Institutions and by Member States in application of the EU Treaties and EC Treaties. By acceding to the ECHR at the present time, this protection will be diminished by the ECtHR’s interpretation and case law regarding Article 6 and Article 19. 132. According to Resolution of 21 November 1991, Parliament has always wanted to endow the institution of Union citizenship with comprehensive rights. It advocated the determination of Union citizenship on an autonomous Community basis, so that citizens would have an independent status. In addition, from the start it advocated the incorporation of fundamental and human rights into primary law and called for EU citizens to be entitled to bring proceedings before the Court when these rights were violated by EU Institutions or a Member State. The very rights which can be seen to be being taken away by the ECtHR. 133. Special instruments adopted in the area of fraud and corruption in the EU took the form of a 1997 Convention on combating corruption involving civil servants of the European Communities or the EU Member States. The ECtHR does not have any of these instruments. In fact the ECtHR in the reform of protocol ensures such instruments do not exist, despite being reminded of the necessity for protection, the Court by its own actions encourages such abuse of power by civil servants. 134. The European Parliament has stated that it considers that the Union’s objective should be to simplify the recourse to justice for citizens and companies and to make justice more effective in an integrated European area, particularly by encouraging the mergence of a common judicial culture. It also thinks the recognition and enforcement of judgments should be a practically automatic process between Member States and that there is therefore an urgent need to encourage the compatibility of legal rules and proceedings. Accession to the ECHR will certainly complicate the matter. 135. It is also important to note the Contribution from the Secretary General of the Council of Europe, Mr. Walter Schwimmer to the EU “800 MILLION EUROPEANS Involving the Greater Europe in responding to key Laeken questions” - The purpose of this memorandum is to propose to the members of the Convention at an early stage of their work ways in which the Council of Europe can contribute to addressing certain key questions in the Laeken Declaration: - “by the accession of the EC/EU to the European Convention on Human Rights as part of a coherent approach to the effective protection of human rights in Europe” 136. The Council of Europe is the home of Europe’s main human rights conventions, the European Convention on Human Rights being the prime example. Its rights and freedoms are common to all European states and its international control mechanism offers protection for 800 Million Europeans. 137. Though all of the above may be true, unfortunately the established case law and the interpretation of Articles of the Convention by the ECtHR do not inspire any confidence that it will afford citizens such protection as the rights guarantee. 138. Although it has been put forward that The European Union Convention is an opportunity to reinforce legally binding mechanisms for the protection of human rights within the European Union and that the objective of strengthening the safeguard of these rights both within the European Union and in Europe as a whole, can only be achieved through the accession of the European Union/European Community to the European Convention of Human Rights, which would create a single legal mechanism applying in equal manner to all state and other authorities in Europe which are exercising the competence affecting the rights protected by the Convention. ; it is now questionable however, in light of the evidence submitted here before the Committee and the Parliament, whether the ECHR is adequate to guarantee fair hearing and effective remedy and independent and impartiality of the judiciary particularly when there is no right of appeal, the ECtHR is not a party to the Convention and judges and registrars are not made accountable and decisions are made based on the secret report of the Rapporteur presented to the Court. 139. On the basis of the mandate (doc. CONV 72/02), the Working group II “Incorporation of the Charter/ accession to the ECHR” has, in the course of its seven meetings and having held hearings with several legal experts , examined two main complementary issues: - - The modalities and consequences of possible incorporation of the EU Charter of Fundamental Rights into the Treaties; - The modalities and consequences of possible accession of the Community / the Union to the European Convention on Human Rights 140. It is important for the European Parliament to
give consideration to the Discussion paper “Modalities and
consequences of incorporation into the Treaties of the Charter of “For some 30 years the case-law of the Court of Justice has acknowledged that fundamental rights form part of Community law as general principles of this law . In the absence of a written catalogue specific to the Union, the Court has derived the content of these laws through case-law, taking as a basis various sources, especially the constitutional traditions common to the Member States and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which has been ratified by all the Member States. For several years, the Court of Justice has noted that the ECHR has “special significance” in this respect, and refers explicitly to the case-law of the European Court of Human Rights . It has also stated that not only the institutions of the Union but also the States, where they act within the scope of Community law, are required to respect fundamental rights under the supervision of the Court .” 141. There is no doubt that the ECtHR has done, and will continue to do excellent work but now unfortunately the competence and integrity of the ECtHR is questionable for the reasons discussed above. Furthermore according to Mr Marc Fischbach, Judge at the European Court of Human Rights, speaking in a personal capacity , responding to questions put by Group members, Mr Fischbach made, inter alia, the following comments: - Mr Fischbach felt that EC/EU accession to the ECHR would not affect the autonomy of Union law. The European Court's remit was confined to giving rulings on compliance with obligations arising from the ECHR. The Court did not interpret the national law of the contracting States; neither, therefore, would it intervene in the interpretation of Union law, for which the Court of Justice would remain the supreme arbiter. 142. Unfortunate rulings on compliance with objections arising from the ECHR are a matter of discretion of the Court and the secret report by the Rapporteur. The Court has demonstrated that “the Court is not competent to deal with an application alleging that errors of law or fact have been committed by the domestic courts” even in issues in which the officers of local authority have purported to carry out their statutory duty and function and made fraudulent statements in their Affidavits to the courts. 143. EU accession to ECHR will make matters worse. 144. In accordance to EU statement, The Charter of
Fundamental Rights of the European Union has to be seen in the wider
context of the EU's long lasting commitment to human rights and
fundamental freedoms and of its policy in the areas of Justice and
Home Affairs. The European Union has always stated its commitment
to human rights and fundamental freedoms and has explicitly confirmed
the EU's attachment to fundamental social rights. The Amsterdam
Treaty, which came into force on 1 May 1999, has established procedures
intended to secure their protection: - 1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles that are common to the Member States. 2. The Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. 146. However EC/EU accession to the ECHR will facilitate courts of Member States to do whatever they want; even if by their actions they seriously violate human rights and act in a manner not compatible with the principles of EU as supported by case law and interpretation of Article19 of the Convention since the ECtHR is already on record as stating the Court is not competent to deal with an application alleging that errors of law or fact have been committed by the domestic courts even such an error violates the rights as guaranteed by the Convention. 147. With regard to “The legal system, the judiciary and capital punishment” the Commission report states: - “The link between the rule of law and democratic principles has been clearly established by the EU. In its Annual Report, the EU states that the rule of law and an accessible judicial system are an essential framework for democracy and human rights and that ‘Governments and public officials must act in accordance with the law and within the limits set by the law’”. 148. It is a matter of record that governments and public officials can in the ECtHR’s determination act above laws, and outside the limits set by law, with impunity. Worst of all the ECtHR has acted to aid the cover up of the misbehavior of public and government officials. 149. We understand the Commission to have set out certain key components of the rule of law, including a legislature and executive giving full effect to human rights, an independent judiciary, effective access to legal redress, and a legal system which guarantees equality before the law. Current practice by the Court often falls in direct conflict with the Rule of Law and the Convention. 150. For the Commission, a legal system guaranteeing equality before the law and providing ‘effective and accessible means of legal recourse’ is an essential element of the rule of law. The ECtHR has very obviously failed this test. 151. The basis for European Union action is clear. The European Union seeks to uphold the universality and indivisibility of human rights - civil, political, economic, social and cultural, as reaffirmed by the 1995 Beijing Declaration and Platform for Action. The protection of such rights, together with the promotion of pluralistic democracy and effective guarantees for the rule of law and the fight against poverty, are among the European Union’s essential objectives. 152. The Treaty of Amsterdam - which came into force on 1 May 1999 - reaffirms in its Article 6 that the European Union ‘is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles that are common to the Member States’ and emphasizes in Article 49 that the respect of these principles also is required by countries who apply for EU membership. This raises the question how can EU accede to the ECHR when the ECtHR seriously and persistently breaches the human rights of its citizens. 153. The Commission’s actions in the field of external relations are supposed to be guided by compliance with the rights and principles contained in the EU Charter of Fundamental Rights which was officially proclaimed at the Nice Summit in December 2000, with the view to promoting coherence between the EU’s internal and external approaches. The Charter makes the overriding importance and relevance of fundamental rights more visible to the EU’s citizens by codifying material from various sources of inspiration, such as the European Convention on Human Rights, common constitutional traditions, and international instruments and the present disreputable interpretation by ECtHR must not be allowed to interfere with this. 154. The European Union is well placed to promote democracy and human rights. It is continually seeking to improve its own democratic governance, and the Commission is expected shortly to adopt a White Paper on the theme. Acceding to the ECHR at this time with the ECtHR acting in the maverick manner that can be demonstrated, will defeat the object. 155. The Report from the Commission on the implementation of measures intended to promote observance of Human Rights and Democratic Principles in external relations for 1996 – 1999 Transparency of public administration Brussels, recognises clearly that: - Corruption is not simply a moral problem: it impacts on public administration, distorts decision-making and undermines the legitimacy of Governments, posing a serious threat to democracy. Transparency, accountability and strong measures against corruption are key elements of good government, and an important emphasis of the Commission’s strategy in promoting institutional and administrative reforms connected with democratisation and the rule of law. The Commission set out several reforms which warrant particular attention, including administrative decentralisation, whereby local democracy can develop at a grass-roots level, making citizens ‘the government’s partners rather than its dependants’, and measures to prevent fraud and corruption. Accession to ECHR at this time will interfere with these measures. 156. Parliament has also made it clear that widespread corruption erodes confidence in the State’s ability to take effective action and that the most important way of countering this is to ‘help boost the openness and transparency of public bodies’. One would ask if the EU would retain or gain more power to influence the ECtHR by the accession. The answer is obviously negative. 157. In light of serious international concern about the level of corruption in the ECtHR, we ask Parliament to consider providing assistance in support of an initiative of the organisation aimed to expose and curb ‘grand corruption’ in the ECtHR and which is targeted at corrupt practices which have the effect of distorting official decision making, and which impact seriously on the development process within COE. 158. It is difficult to come to terms with the probability that there are proportionally more victims of the abuse of power by the ECtHR than what is publicly admitted. This is due to the lack of communication and the inaccessibility of the ECtHR documents, such as all decisions made inadmissible and the Rapporteur’s secret reports. REMEDY SOUGHT 159. We petition the European Parliament in light of the increase in judicial abuse and the persistent, widespread and systematic violation of human rights by the ECtHR and in the danger that the accession to the ECHR is going ahead unabated. 160. If the accession proceeds without any safe guards in place, the Charter of Fundamental Freedoms and Human Rights will be just a show piece, taking away the guaranteed rights provided by the EU. 161. ECtHR must reform to be seen as transparent, fair, impartial and an accountable institution before question on accession can be even considered. 162. There must be an identified and publicly announced policy on the “margins of appreciation” which are widely seen by EU citizen as a vehicle open to legal abuse and successfully used by the court to deny the Human Rights protection afforded by the Convention. 163. It is important that all members of the EU Parliament are aware of the malpractices occurring within the ECtHR and of the fact that until the needed safety mechanisms are implemented, accession to the ECHR can only jeopardise the human rights of EU citizens. CONCLUSION 164. The ideals and guarantees of citizens rights encoded in the European Convention on Human Rights are only possible in practice if all courts especially the ECtHR are Just courts. The ECtHR is short on “Consistency, Accountability and Transparency (CAT) - essential ingredients for democratic states. 165. Only if the courts of Member States can be guaranteed to act with independence and impartiality and CAT, can the Court’s present interpretation of Article 6 and Article 19 stand. However when even the Court itself can be seen to be abusing power, how can courts of Member States be expected not do the same. 166. As the United Nations Office for Drug Control and Crime Prevention stated:- “A serious impediment to the success of any anti-corruption strategy is a corrupt judiciary. An ethically compromised judiciary means that the legal and institutional mechanism designed to curb corruption, however well-targeted, efficient or honest, remains crippled. Unfortunately, evidence is steadily and increasingly surfacing of widespread corruption in the courts in many parts of the world. To confront the problem, the UN is taking a variety of approaches. It is examining judicial corruption in detail, and seeking to identify means of addressing it, both in higher and lower levels of court systems.” 167. In order for ECtHR to be accepted as a guardian of Human Rights, there has to be a measure of accountability, transparency and not, as at present, arrogance displayed by officials. The public must be able to identify rights with the Court and not abuse of rights. There needs to be a mechanism whereby there is accountability and the running of the Court is transparent. There must also be a mechanism whereby court officials are held accountable for any wrong doings. 168. Unfortunately the new reforms merely introduce rules to speed up the admissibility stage to reduce the Court workload and will only encourage the further abuse of power. It seems there is increasing materialism in the courts. Secret Reports by the Rapporteur cannot be a guarantee of protection of the independence and impartiality of the judiciary, while in many cases secrecy combined with the lack of accountability seems to encourage more open and consistent fraud. 169. For the Court to adopt Secret Reports in reaching its decisions; reports not made available to any applicants, is in itself a procedure not compatible with the Charter, the UDHR, Rome Statute of the International Criminal Court, International Covenant on Civil and Political Rights 1966, International Covenant on Economic, Social and Cultural Rights 1966, and the Convention. 170. The report by CDDH-GDR (2001)010 states “The Reflection Group decided unanimously against the idea that an inadmissibility decision could be taken by a committee consisting solely of senior Registry officials.” However from the communications between applicants and the Court, (copies available) it would appear the senior Registry has a history of pre-empting the Court in such admissibility decisions by selecting ‘appropriate’ but inaccurate facts of the case on behalf of the Court. 171. Furthermore with the name of the rapporteur appointed by the Court being confidential, and not even made public after the decision is reached, this creates even more doubt regarding how the secret report is drawn up. 172. Interpretation of Article 6 as “Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts” will continue to leave citizens of the EU open to abuse by the courts of Member States. It also takes away any redress afforded by the Charter and Community Legislation as well as national legislation. 173. The ECtHR’s interpretation of Article 19 of the Convention has given the right to the courts of Member States to abuse EU citizens with impunity when applying Community Legislation. 174. Bearing all this mind, it is important to recognise,
that in order to protect the rights of EU citizens under the Community
Legislation, until such a time the Court of the intergovernmental
organisation COE introduces safety measures to protect the human
rights of EU citizens in their new reform of protocol, it would
be disastrous for the EC/EU to accede to the ECHR particularly since
the ECtHR does not protect the rights guarantee by the Convention
and can and does act above the law. 176. We do not feel that within a democratic society, the ECtHR should be above the law and unaccountable. If the accession is to proceed, then the ECtHR cannot proceed on the basis of “secret reports” in contravention of EC Directive 90/313/EEC. 177. We ask members of the Committee and Parliament to give serious consideration to our petition and not to accede to the ECHR lightly without first ensuring and securing the ECtHR is acting in the best interest of EU citizens and has acted as an international independent judiciary. 178. We also ask the Parliament to consider that ECJ must have final jurisdiction and the power to interpret human rights based on its own case law and the principles EU founded upon. ECJ is more experienced in domestic matters, financial matters and human rights matters and is important that it remains as an avenue of redress for EU citizens rather than acceding to the ECHR until such time as the rights protected by the Convention are guaranteed. Dr K S Badsha MSc CChem MRSC MAE P O Box 267 Petition |
PO Box 267 Southport PR8 1WD UK
Email: info@elc.org.uk