Compliance with human rights judgments

The UK’s Investigative Obligation

In order to comply with human rights judgments, especially concerning article 2 of the European Convention on Human Rights (ECHR), the UK must effectively investigate the killings of civilians by state. The requisite standards have been highlighted as: promptness, impartiality and thoroughness. Investigative bodies in Northern Ireland have been described as “dealing effectively” with the relevant obligations,[1] and the Committee of Ministers of the Council of Europe has expressed its satisfaction with the UK’s implementation of the package of measures to the extent that it is willing to withdraw its monitoring role.[2]

However, recent research suggests that the UK is failing in its obligations under article 2 ECHR. While acknowledging its pitfalls, the UK has persisted with the ‘package of measures’ rather than devising a new resolution to its article 2 violations. It is submitted that states must possess the political will to comply with human rights judgments. Otherwise, the judgments are nothing but ‘words on paper’.[3] Therefore, for the international human rights system to be credible, it is necessary for states to refrain from mere posturing and to put human rights at the forefront of domestic policy-making.

Compliance

There are several factors influencing compliance with human rights judgments. First, the approach of the human rights court itself influences compliance rates. The European Court of Human Rights (ECtHR) seems to delegate compliance to its member states, granting political ‘elbow room’ so that states may make the necessary legislative changes domestically. The Inter-American Court of Human Rights (IACtHR), on the other hand, takes a more dictatorial approach, issuing a checklist of required steps for satisfactory compliance. Both of these methods can, however, facilitate a selective approach to compliance as states act only where politically convenient.

Compliance tends to vary between rights because each right has a unique jurisprudence, and some obligations are more agreeable to some states than others. Compliance also varies depending on how readily a state’s infrastructure facilitates implementation of human rights judgments; usually, states with more transparent democratic legal and political systems will fare better. Moreover, the international context of compliance can influence a state’s attitudes to human rights as poor compliance may negatively affect a state’s international reputation.

Where compliance is politically advantageous, compliance is more likely. The UK’s ‘package of measures’ demonstrates the influence of political will on compliance with human rights judgments. The UK’s 2003 package of measures addressed its legal obligations to conduct investigations into killings by security forces in a manner compliant with article 2 ECHR. Ten years since the package of measures was issued, the significance of the most recent case on the UK’s investigate obligation – McCaughey [2013] – will be discussed below.

“Promptness, Impartiality and Thoroughness”

In previous case law, three standards can be highlighted regarding article 2 ECHR obligations: promptness, impartiality and thoroughness. An analysis of the Office of the Police Ombudsman of Northern Ireland (OPONI) and the Historical Enquiries Team (HET) raises serious questions over how compliant these bodies are with the article 2 ECHR obligation.

Research conducted in recent years has demonstrated how OPONI falls below these standards in the following ways: delays in investigations, allegedly caused by lack of resources; lack of independence in investigating complaints; lack of transparency regarding intelligence policing; the police-civilian ratio in OPONI; the lack of military cooperation with OPONI; the referral process from HET to OPONI; and the interpretation of ‘grave or exceptional circumstances’.

Problems with the HET’s compliance with article 2 standards include notorious delays in investigation; the bypassing of investigations in “exceptional circumstances”; a lack of witness and forensic evidence; the rehiring of former RUC officers; distinct investigatory procedures for police and for military personnel. These issues have compromised levels of promptness, impartiality and thoroughness required for full compliance with article 2 ECHR, and have ultimately led to a lack of public confidence in both OPONI and the HET. In fact, the research of Prof. Patricia Lundy prompted a public apology by PSNI Chief Constable Matt Baggott.

‘Political Will’

A delicate balance must be struck that ensures the jurisprudence does not set too high a threshold for compliance. If so, states may be unable to comply and the human rights system could lose credibility. However, after Janowiec [2012], a failure to investigate under article 2 ECHR may now constitute a further human rights violation. It is all the more important that the UK fulfils its human rights obligations.

If it can be shown that there has been a “flagrant, continuous and callous disregard for [relatives’] concerns and anxieties”, the failure to investigate may constitute inhumane and degrading treatment and violate the positive obligation under article 3 ECHR.[4] Whereas article 2 calls for a prompt, impartial and thorough investigation into the killings, article 3 obliges “the authorities to react to the plight of the relatives… in a humane and compassionate way”;[5] the “silence of the authorities of the respondent State in face of the real concerns of the relatives may only be categorised as inhuman treatment.”[6] In order to comply with ECHR standards, the UK’s package of measures requires reform, which will need political change in both Stormont and Westminster.

In examining the political will to comply with human rights obligations, major instances of political influence are evident in the investigative process in Northern Ireland. The discretionary interpretations of “public interest” and “national security” illustrate how legal terminology can become a political determination. The controversy of amnesties remains a ‘political hot potato’ in Northern Ireland today due to the dual desire in our society for truth-recovery and for prosecution. Furthermore, the questionable decision of the Committee of Ministers (CoM) to end supervision of the UK’s implementation of the package of measures may be construed as a diplomatic decision treating the government with too much lenience.

‘Conventionality Control’

The courts’ system for monitoring compliance is very influential. The IACtHR system has no specific body for monitoring compliance, whereas the ECtHR has the CoM. The CoM is composed of diplomats from each Council of Europe member state. Its function has been considered “deferential to national authorities”,[7] and such politicisation of compliance is a cause for concern. Interestingly, the IACtHR has recently developed a controversial approach known as ‘conventionality control’, which can obligate national judges to “disregard domestic regulations that fail to conform” to IACHR judgments.[8] It encourages “transnational judicial discourse”[9] in order that judges promote the American Convention on Human Rights over domestic law.[10]

A similar method may be desirable for the ECtHR, and we might have glimpsed some potential in the recent case of McCaughey & Others v UK (43098/09) Chamber Judgment [2013] ECHR 682 (16 July 2013).

McCaughey [2013]

Judge Kalaydjieva’s judgment in McCaughey [2013] seems to encourage less tolerance of non-compliance with human rights judgments.

“There is nothing to explain, still less to justify, the failure of the domestic authorities to meet their obligations through more appropriate and expeditious means of their own choice” [para. 36]

It would appear that a change is needed to the ‘compliance culture’ in Strasbourg. An English court recently stated that a judgment of the ECtHR “confers no rights enforceable in this jurisdiction upon the claimant”.[11]

 

We have seen developed a new approach in the IACtHR’s ‘conventionality control’, whereby judges are prioritising international human rights law over domestic regulations. It may take time for something similar to happen in Strasbourg, but with more damning judgments like that of Judge Kalaydjieva persisting over time, the ECtHR may shift the tide of European human rights law to induce better compliance. If judicial pressure continues to mount on the UK to comply with its investigative obligations, it is possible that the prospect of a fresh article 3 ECHR violation may instigate renewed political will to comply with human rights judgments.