Do international courts of human rights promote or curb our freedom? One of Europe’s top judges replies.

Vincent Anthony De Gaetano served as a judge on the European Court of Human Rights from 2010-2019. He has been one of the leading legal voices in Europe. Never afraid to express his views when his conscience demanded it, Judge De Gaetano talks about some of his experiences answering questions from our correspondent José Young.

Is a European Court of Human Rights merely the enforcing arm of an all-controlling superstate? Why should it know any better than any national court?   

A key distinguishing feature of the European Convention on Human Rights is its enforcement mechanism. The fathers of the Convention – Winston Churchill, Robert Schuman, Alcide de Gasperi, Konrad Adenauer, Ernest Bevin among others – had witnessed the failure of previous international treaties which had sought to secure peace in Europe and beyond. They had also witnessed the gross violations of fundamental human rights which had occurred all across continental Europe during World War II and in the years leading up to that war, no less than the violations which had continued to occur with impunity after the end of the war in those countries in Europe under the sphere of influence of the Soviet Union. 

This first-hand experience had convinced them that peace in Europe could only be secured if the values of human rights, democracy and the rule of law were adhered to.

Solemn promises by politicians, the waving of a piece of paper in the air and pious aspirations for “peace in our time” had proved time and again to be insufficient, and an enforcement mechanism was therefore created. 

This mechanism to-day consist of the Court – which interprets the Convention and decides whether a member State has or has not violated any of its provisions – and the Committee of Ministers of the Council of Europe which, through quiet peer pressure, ensures that the Court’s judgments are effectively enforced, and that remedial action is taken by the State found wanting. 

But isn’t this taking away national sovereignty?

Every treaty, bilateral or multilateral, that any State signs in which it binds itself to do or to abstain from doing something, involves a limitation of the sovereignty of that State.

By having an international court rule on violations of human rights and fundamental freedoms the Convention ensures that the final decision is taken not by courts which, to a greater or lesser extent, may be influenced by domestic political considerations or restrictive domestic legal and cultural traditions and perspectives, but by a body which is at least one step removed from all that. 

This was, in fact, one of the arguments used to justify appeals to the Privy Council in London from the highest courts of the British Empire, and which is still the main argument for retaining appeals to the Privy Council from some States that are now independent republics. Politicians and judges who say that domestic courts invariably know better than an international court are, in my view, falling into the trap of political and judicial arrogance.

Can you give some examples of how the European Court of Human Rights has exercised a positive role?

There are countless examples of the positive role or influence that the European Court of Human Rights has exercised over the last 70 years: the improvement in prison conditions throughout Europe, by requiring that even prisoners, who are deprived of their liberty, should be treated with dignity; the curbing of the state’s power to intrude into private life; the abolition of cruel punishments (like caning, which the United Kingdom government fought tooth and nail to retain for the Isle of Man in the Tyrer Case (1978); ensuring that torture does not occur on European soil (like some recent cases – the CIA rendition cases as they are called – against a number of member States of the Council of Europe who were prepared to play second fiddle to the U.S government’s use of torture); ensuring the freedom of the press and of investigative journalism, which domestic laws often attempt to curtail; ensuring access to courts as a necessary part of the right to a fair trial (Golder v the U.K., 1975, where the U.K. government unsuccessfully tried to argue that the Convention guaranteed the right to a fair trial but not necessarily the right of access to a court to secure that right); requiring States to take positive action to combat racism, human trafficking and unjustified discrimination in the enjoyment of rights; ensuring the freedom of churches and other ecclesial entities and religions from unjustified State interference; one could go on and on. 

What action in your long legal career has given you the greatest satisfaction?

Teaching criminal law and law of criminal procedure at the University of Malta was exceptionally rewarding. It gave me the opportunity to share my views with young people, and there were not a few occasions when I also benefitted from the views of my students. 

As a prosecutor in the Attorney General’s Office in Malta, I was responsible, together with a colleague from that Office who eventually succeeded me as Chief Justice, for the prosecution and conviction in 1993 of the former Commissioner of Police of Malta. He stood charged with the death of a suspect in police custody. After a lengthy trial by jury he was found guilty of complicity in grievous bodily harm followed by death and he was sentenced to 15 years imprisonment. That trial brought to a close a rather inglorious chapter in the history of the Malta Police Force. 

As a judge in Strasbourg, the possibility of writing dissenting opinions, sometimes using strong language, on a number of issues also gave me considerable satisfaction, and in many cases ensured that I could go home in the evening and sleep with a clear conscience. 

The most difficult case I had to deal with was that of Lambert and Others v France (2014), where I and four other judges disagreed with the majority over a right to life issue. 

The gist of our seven-page separate opinion is summed up in the opening paragraph: “After considerable reflection, we believe that once all is said and written in this judgment, after all the subtle legal distinctions are made and all the fine hairs split, what is being proposed is nothing more and nothing less than that a severely disabled person who is unable to communicate his wishes about his present condition may, on the basis of a number of questionable assumptions, be deprived of two basic life-sustaining necessities, namely food and water, and moreover that the Convention is impotent in the face of this reality. We find that conclusion not only frightening but – and we very much regret having to say this – tantamount to a retrograde step in the degree of protection which the Convention and the Court have hitherto afforded to vulnerable people.” 

What is the basis of human rights? Is it possible to achieve a consensus on this today? Certain things are being claimed as human rights which those of a more traditional religious or moral background would strongly disagree with, like the so-called right to abortion. What do you think about this?

The basis of human rights is the inherent dignity of all human beings.

Interestingly this is mentioned only in the Preamble to Protocol no. 13 to the Convention, which was signed in Vilnius in 2002 and which effectively abolished the death penalty in Europe (only Belarus, which is not a signatory to the Convention, retains the death penalty). The Charter of Fundamental Rights of the European Union is more explicit. Article 1 of that treaty expressly says:

” Human dignity is inviolable. It must be respected and protected. ”

Yes, there may be, on the fringes, disagreement as to the actual content of what human dignity entails. Some lobby groups, acting at national level, have successfully argued – and I say successfully, because politicians have given in to these lobbies – that such dignity includes the right of a woman to terminate a pregnancy or the right to same-sex marriage. 

A popular misconception is that these so-called rights – the right to abortion, for instance – are the creation of the European Convention or the European Court of Human Rights. Nothing could be further from the truth. The Strasbourg Court is extremely careful not to create, even by implication, rights which have no basis in the Convention. 

The Court has, in fact never said that there is a fundament right to abortion under the Convention or a fundamental right to same-sex marriage – indeed, the only marriage that the Convention recognises, in Article 12, is marriage between “men and women of marriageable age”. It is only because States, not the Convention or the Court, have introduced abortion or same-sex marriage at domestic level that the Court has been called upon to deal with the collateral effects of those legislative innovations, for instance on issues of access to a court to determine controversies regarding abortion. 

What is going on in Malta in the Daphne Caruana Galizia case? What needs to happen?

Daphne Caruana Galizia was Malta’s most famous investigative journalist in the 15 years before her assassination in October 2017, the importance and poignancy of her work quadrupling since the general elections of 2013. 

She was hugely effective because she asked the big and the right questions. She wanted to call out her country’s dysfunctional electoral system, a two-party system heavily reliant on financial support from big business, understaffed financial regulators and spasmodic and largely ineffective investigations into money laundering; and she always asked how a European nation like Malta, a member state of the European Union, was able to operate like this without consequences. 

She exposed corruption at the highest level of government. She was evidently inconvenient, and because of that she was eliminated – her car was blown up. 

It is true that four people – the three alleged material executioners, and a fourth person as the alleged mastermind – are currently undergoing criminal proceedings, but the larger socio-political background picture involving the former Prime Minister (Joseph Muscat), who resigned in January, another minister and the political head of the Prime Minister’s Office is still very unclear. The Prime Minister’s resignation, and that of the minister and of the chef de cabinet, was brought about by recent journalistic and other revelations about the web of intrigue, corruption and mal-administration in the highest circles of Government in Malta.

For more than two years the Maltese government dragged its feet over a public inquiry that had been requested by the Parliamentary Assembly of the Council of Europe – peer pressure, again, at European level – but finally had to give in. This Board of Inquiry, composed of a retired judge as chairperson, together with a retired Chief Justice and a serving judge, has been hearing evidence in public to try and establish in particular the background to Caruana Galizia’s assassination, and what responsibility, if any, the executive should bear for generating a climate of hatred and impunity which encouraged or facilitated her assassination.

What do you think about conscientious objection? People of more traditional moral views think it is being increasingly denied to them. What is your view on this?

Conscientious objection to military service has been recognised by the Court in Strasbourg in the Bayatyan Case (2011) as falling within the ambit of Article 9  (Freedom of thought, conscience and religion) of the Convention – many States of the Council of Europe had by then already provided for conscientious objection to military service. 

Freedom of conscience occasionally comes into conflict, at domestic level, when other public services are involved. Here the European Court of Human Rights has been very reluctant to interfere, generally arguing that the authority of individual States to draw the line between the public servant’s right to freedom of conscience and the provision of a particular public service should be respected. 

The classic case is that of Eweida and Others v the U.K. (2013), where a public official, a marriage registrar, was forced to resign because she could not in conscience officiate at same-sex partnership ceremonies. The Court found no violation of the Convention in her regard. I and another judge disagreed. In our dissenting opinion we even quoted from Cardinal (now Saint) John Henry Newsman’s famous Letter to the Duke of Norfolk, where Newman wrote: “Conscience may come into collision with the word of a Pope, and is to be followed in spite of that word.”

In other words, conscience always comes first. The importance of conscience has not yet been fully recognised in Strasbourg.

This is illustrated by two decisions published this month by the Court in which a committee of three judges – a judicial formation which has also a vetting function – denied two midwives in Sweden, who were claiming the right to conscientious objection in cases of abortion, the possibility of having a full examination of their case by declaring their applications inadmissible. This is a dangerous precedent which could open the door to the right to conscientious objection being restricted or denied in other European countries.

Many people believe that judges are the ones who create laws. What is your stance on the age-old debate on whether the Judiciary creates new laws or interprets the will of parliament? Especially in Common Law countries where precedent is followed.

Whether common or civil law jurisdictions, judges are there in principle to apply the law and in order to apply the law sometimes it is necessary to interpret the law, and that is where the judge can, in interpreting the law, be seen as creating the law.

It may be that he is not creating the law, he is simply interpreting and making it clear. In certain cases, however, he might be too judicially active, and may then be creating something that was never intended by the legislature in the first place. Now, that is a very fine line. However, in principle, the judge is there to apply the law and, where interpretation is possible and necessary, to interpret the law.

With regard to courts of final appeal, what is your view on whether the judges should be politically appointed as in the US supreme court or appointed independently such as in the UK supreme court?

Not only judges at appellate level but even judges of first instance, including magistrates, should not be politically appointed. They should be appointed by independent bodies which ensure that those selected are firstly competent, and secondly, that they have kept and will be able to keep their distance from politics. 

In certain jurisdictions such as in the US, some judges are politically appointed and some even run for elections. It seems to work for them but I certainly prefer systems in countries such as the UK where judicial appointments are made by completely independent bodies with no political intervention whatsoever. 

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