Dean Spielmann - President of the European Court of Human Rights HARDtalk


Dean Spielmann - President of the European Court of Human Rights

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the country reported its last case. Now on BBC News, it is time for

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HARDtalk. Welcome to HARDtalk, I am Stephen

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Sackur. IM just one of roughly 800 million Europeans whose fundamental

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rights and liberties are supposed to be safeguarded by the European Court

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of Human Rights. It is an institution steeped in European

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idealism and ambition. But does it work? My guess is that President of

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the Strasbourg -based court, Dean Spielman. Critics condemn it as

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undemocratic, unaccountable, an infringement on national

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sovereignty. Do they have a case? Dean Spielman, welcome to HARDtalk.

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Thank you for inviting me. Would you accept that as far as European

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citizens like me are concerned, you're caught is actually

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extraordinarily powerful? Yes, I would accept that without any

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reservation. Our court is there to be powerful, I would say. That is

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what the original drafters wanted when they set up the convention. It

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is a troubling to you that I would bet you that if I left the studio

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and went out on the streets of London or any other big city, and

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they asked people exactly what the European Court of human rights was

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for, how it was constituted how it related to other European and

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national judicial authorities. I bet people would have a clue. That is

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often the case with international relations and international law.

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With other questions that people sometimes... Do not know. For the

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courts to be credible and to be accessed it as part of the judicial

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culture, don't people have to understand the basics of what they

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are and what they are for? Absolutely. They need to understand

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and I think that everyone should do his or her best to explain the

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function of the European Court and the functioning of the European

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Convention. We are doing that. We have programmes in Strasbourg to

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explain and we have many visitors who come to the court to visit and

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we are more than happy to explain the system and how it works. Let's

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make a stab at doing it now. Would be fair to draw a very loyal -- lose

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parallel with the US Supreme Court. In the sense that when it comes to

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human rights and basic individual liberties, you are the ultimate

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judicial authority. For all of the member states of the council of

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Europe and that is 47 nations. You are the ultimate judicial arm. The

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convention trusted us to interpret and to try and Rick invent. I would

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be reluctant to see our court in the same way as the Americans see the

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Supreme Court. We are not the Supreme Court of Europe. We do not

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quash decisions of national courts. We do not take the place of the

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legislature. Although we find violations from time to time, often.

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So in fact you do overturn decisions? You challenge them, you

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decreed them to be violations and you demand that changes made. We say

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that in particular cases there has been violation of the convention.

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That is what the drafters wanted us to do. The other point of parallel

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is that there is no comeback from your decisions. There is no grounds

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for appeal, nowhere to appeal to. Yours is the final decision. It

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depends what you mean by the final say. Chronologically, it may well be

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either case. The very last moment when all the domestic remedies have

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been exhausted and that is a requirement of the convention that

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applicants need to exhaust local remedies. But I attach great

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importance to the dialogue also, especially with domestic courts and

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in particular, with Supreme Court is in Europe. You call it a dialogue,

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but in the end one has to define where ultimate power and authority

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lies. You are being a bit shy about it, but it ultimately lies with your

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court. You can demand that your decisions be acted upon at a

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national level. That is absolutely correct. Our decisions are binding.

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The conventions as it very clearly. Our decisions need to be

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implemented. In the domestic system, however how decisions are

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implemented, is part of the marginal appreciation. The law can be changed

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or the case can be changed but my point is, that we do not... Quash

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domestic decisions of court. I think the discussion who was supreme in

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Europe is not the correct way of putting it. I suspect we will get

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back to that when we get to individual cases. We have agreed

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that is a very powerful court. You say, rightly so because of the

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importance of the Convention of human rights in Europe. There is a

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number the picture way in which I see the court to be failing. That

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is, you do not appear to have the resources to be able to match the

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requirements placed upon you. You have tens of thousands of cases in

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your backlog, you have thousands of new cases coming before the court

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every year. You only have 47 judges and it is plain that the resources

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you have, the capacity cannot cope with the demand. It is always a

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problem of resources. That is absolutely true. With limited

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resources, we do quite a good job I would say. Our registry is extremely

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efficient. For example, by the end of 2011, there were 160,000 cases in

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the docket. The latest statistics, which were elaborated a few days ago

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will show that we cut it down to about 98,000 cases. We are now below

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the threshold of 100,000. Is that supposed to be good news for the

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people who are involved in those 100,000 cases which are still the

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backlog? I think that it is very good news that we deal officially

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with the massive influx of cases. Everyone can sign the petition to

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Strasbourg. We need to deal with this addition, that is the right of

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the individual, it is the cornerstone of our system. We need

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to find ways to deal with all those cases efficiently and we have done a

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great asset over the last two years will stop thanks to the registry in

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particular, but also was singled judges may now decide on those

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issues we are able to cope with the backlog. If you think raping is

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having 98,000 cases outstanding, I suppose that is true. Another

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problem is that you have to acknowledge certain countries within

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your council membership inking maybe, Russia, Ukraine, Turkey have

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judicial systems which are so poor, so dysfunctional that vast numbers

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of complainants, as soon as they don't get satisfaction in local

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courts will not come to you. Saying that the local court system is not

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capable of delivering individual justice. That is a problem. I would

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agree with you if our court would be considered as being a court of

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appeal. A super European court of appeal which is not the case.

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However, many of those cases where it its very fundamental human rights

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issues, especially coming from countries which don't have the same

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democratic tradition as other members... Of the system. Even

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concerning countries, you mention the backlog has been reduced over

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the last two years. Considerably reduced over the last two years.

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Listen to you and it sounds as though things are going jolly well.

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It seems to me that your court perhaps faces the most concerted

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challenge to its legitimacy that it has faced in 60 years. The challenge

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comes from the United Kingdom. Would you accept that? I accept there is

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an ongoing discussion here in the United Kingdom. I must say that we

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are a little bit disappointed that the challenge comes from a

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long-standing member of the system. The UK has been into metal in

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setting up the system. The drafters of the convention where British

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lawyers. Not only British lawyers but for example one man played a

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major role in setting up the system. We are a little disappointed that

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now, 60 years after the system has been in place, the question of

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parliamentary sovereignty arises. You use the word disappointed,

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surely you should be worried? Worried with Britain and its

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tradition, a fine, proud tradition of legal integrity, of taking human

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rights and liberties, fundamentally seriously. You should be worried

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that such a country looks at the role you play in European human

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rights... And liberty issues and sees a fundamental problem. I think

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it depends also on how the judgement we deliver, in particular concerning

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English cases or UK cases are explained to the public. There are

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two judgements that have been heavily criticised but it depends

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also on the explanation of the judgement. How you explain to the

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public what the court has said. Or more importantly, what the course

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has not said. We will get to individual cases because I suspect

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we will talk about the same to cases. It is the principle I am

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getting, Chris Grayling is has lost democratic acceptability. He says

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that the government in this country is going to use legislation to

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ensure that the Supreme Court in England and Wales is actually the

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Supreme Court, that you cannot in the end, second-guess decisions made

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either constitutionally formed Supreme Court of this country. The

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very idea of international fundamental rights, as it has been

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set up by the convention is precisely to in trust the

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interpretation and the application of the European Convention to a

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international court. The point that not just politicians, but judges

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made in the UK, one appeals judge court, says that the problem is that

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you push President and Strasbourg caselaw as something which the

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United Kingdom has to regard as inviolable. When in fact, the UK has

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signed to the convention but has not signed to recognise the state has of

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president caselaw, you'll buy your court. There is a fundamental

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difference. I think that the Human Rights Act strikes a very careful

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concerning precisely the problem you raise. What is the relation between

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the master chords and the European Court of Human Rights? The Human

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Rights Act is a marvellous piece of legal engineering. Precisely because

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it says that domestic courts take into account our caselaw. That is

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not mean our caselaw is binding president for the Supreme Court. The

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Supreme Court has over the years done a marvellous job of taking into

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account our caselaw and applying the same principle as we do. Lord

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Bingham once said, no more but certainly no less. That is precisely

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what the Supreme Court has followed over the years. Even cases where the

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Supreme Court went further than what we require as minimum standards in

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our caselaw. That is what I mean. You make it sound -- you make it

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sound like a well oiled machine. The fact is, it just ain't sorry. If you

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look the United Kingdom and challenges that you face today.

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Let's take the first one, that is the issue of sentences for the most

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heinous crimes. In the United Kingdom, the government mix it plain

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that it wants a whole life sentence to mean a whole life without review.

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The British government is determined that it will stand by what it means

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by a whole life sentence. Ella make it is about the way it you present a

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judgement. If you ask people in the street if

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you agree that the most heinous criminals should spend their lives

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in prison, most interlocutors would say yes, of course. That is not what

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the court has said. The court has not said that you cannot sentence

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anyone to life imprisonment. The court has said that after a certain

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amount of time, you need to offer some kind of review. So that it is

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more the possibility to have the sentence reviewed after many years

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that was at the heart of the case. We did not say that life

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imprisonment as such would be incompatible. You may know that in

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the last few days, Chris Grayling has sent a note to Europe that the

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British government has no intention on backing down on this. The whole

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life tariff will remain without review. What will you do about it?

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If that is the case, Mr Grayling must be aware that not executing a

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judgement of the European Court is inconsistent with international law

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to begin with. And with the convention. What will you do about

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it? We are probably getting other cases. We will decide on the merits

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of those cases. That is not the question. What will the committee

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do? The committee has the obligation to supervise the execution of our

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judgements. We will come back to sanctions that you may be able to

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place upon a government which refuses to act but let us look at

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another case. Votes for prisoners in British jails. Prisoners in Britain

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do not have the right to vote. Your court has decreed that that is

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unacceptable, a violation of human rights standards. The British

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government has made it plain that they are prepared to talk about some

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minor adaptations but this ban is not negotiable. Again, we did not

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say that prisoners should all get the right to vote. What we said is

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that a blanket ban preventing all prisoners from voting is

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inconsistent with the convention and incidentally this debate in the UK

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has now led to a report by the joint committee and the joint committee

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takes the same view that a blanket ban would clearly be inconsistent

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with the Strasbourg case. There are alternative solutions... Parliament

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voted 200 and something votes to 20 that it would maintain the ban. Does

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that not matter to you? Of course it does. I would hope that after

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reading the report and after having a very thorough discussion as always

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here in the UK that a majority of parliamentarians may reconsider

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their position. I would say that the majority would agree that the

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Minister of Justice should -- that laws to be made in the British

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Parliament. You are de facto making laws in Strasbourg. That is not what

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we're doing. You at precisely saying that British law at the British law

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at the stand cannot stand. We are saying that the break -- a blanket

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ban is this proportionate and inconsistent with the convention.

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There are options on the table. Parliament is have the widest margin

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to fight -- Parliament had the widest margin to find a solution.

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You have gotten yourself into a heck of a confrontation here with the UK

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government. David Cameron said that it made him feel physically ill to

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imagine that prisoners would be given the right to vote. Looking at

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some of the most popular newspapers in the UK, they have been running

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headlines in the past months speaking of terrorists, rapists, and

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paedophiles getting the vote. I'm sure you've read the opinion polls

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that show a clear majority of British people do not want prisoners

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to have the vote. You have got yourself and the court into a full

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on confrontation with not just the British government and not just the

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British public but the entire British system. Once again, it

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depends on how you explain the judgement of the public. If you say,

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"would you agree that rate that and axe murderers should be deprived of

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the right to vote? " It is clear that most people would say not to do

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so. That is not the court said. The court has said that the blanket ban

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is inconsistent with the convention. There are options on the table. Does

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it not worry you that some of the most senior and respected legal

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minds in the UK accuse you, including Lord Sumption of becoming

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a flag bearer for judge-made law extending well beyond the text with

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which you charge of applying. I read that very interesting lecture in

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Kuala Lumpur. He referred to the notion of a living instrument. We

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have constantly interpreted and domestic courts have done so as

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well, the Constitution as being a living instrument. Lord Sumption

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Chris -- questions and criticises this approach. It is clear that the

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draft of the convention did not envisage the development of

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technology or bioethics or DNA questions. It is clear to us and to

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the domestic courts all over Europe that the convention needs to be

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interpreted in the light of changing circumstances. That is very

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important and is sometimes misrepresented. We do not create new

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rights. I want to be very clear on that principle. We interpret the

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convention rights in the light of changing circumstances without

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creating new rights. That is not the way in which many British judges as

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well as politicians see it. Let us get back to this point about

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sanction, that punishment. If Britain refuses to tow your line.

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Chris Grayling, the Secretary of State for Justice says that there is

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nothing you can do and even if you impose fines upon the British

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government, the British government doesn't have to pay them. I think

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that not implementing or executing the judgement of the European Court

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would be and is a violation of international law. The joint

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committee in the reporter mentioned earlier made that very clear. Would

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Britain then have to be thrown out, in your view, of the Council of

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Europe, if it refused to acknowledge and abide by the rulings of the

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European Court? That is a political question. As the president of the

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court, I don't want to enter the political arena. You must understand

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that. It is germane to a question. The British government says it is

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not necessarily the case that Britain would be thrown out of the

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Council of Europe. I want to know what you think. It is of course a

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problem if a country with a long-standing tradition of

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protecting human rights... I would like to pay tribute to the work

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which has been done by the UK in the rest of the world to promote human

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rights. That this country would not comply with the rule of law... That

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is why it may be, with all due respect, for you to push these

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issues like the rights of prisoners to vote. You could stand to lose

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more than the British government. The British reputation of good law

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and integrity and human rights respect. It could be that some

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countries will look at Britain standing at your courts and think

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that if Britain can stand up, so can we. What is the downside? You are

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absolutely right with your analysis concerning other countries. That is

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not the reason for us not to interpret or apply the convention of

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the court into our principles. We would introduce a double standard.

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We would make a different decision when a long-standing member Council

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of Europe is concerned and are more strong decision when other countries

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are concerned. That is precisely what the European Court never wanted

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to do. To apply double standards. We could be seeing the beginning of the

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unravelling of this 60 year experiment in Pan European human

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rights justice. It is not just Britain. For example, the Russians

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are right now saying that they see no reason to abide by your rulings

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on some of the issues concerning gay rights and the treatment of

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homosexuals. Very loud noises in the Russian parliament along those

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lines. It could be that we are about to see the fragmentation of the

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European Court of Human Rights. If you mentioned this problem raised

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by, you say, Russia. With this argument, we could also then adopt a

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different case law concerning Russia or concerning any other country. We

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never did that. We never applied double standards. If you lose

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Britain. If Britain walked away from the European Court of Human Rights,

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it becomes much less difficult for a country like Russia to walk away as

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well. Of course. You are close to facing that danger. I insane that if

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Britain were to leave the European Convention, it would be a clinical

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disaster. For everyone. For everyone dedicated to the effective

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protection of human rights, not only in Europe but in the rest of the

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world because we have a unique system of protecting human rights,

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and very powerful system, yes, admittedly that is true but it has

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worked so well over the years. It has given Europe so much and also

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the United Kingdom. What is a warning to David Cameron whose party

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is right now actively contemplating walking away from the European Court

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of Human Rights? My warning would be that Britain should be very careful

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not to lose its credibility by taking such an important move. It

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would not be in the interests of effective human rights protection

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and I am personally convinced that it would not serve the British

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interests. Dean Spielmann, we have to enter there. In Q4 being on

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HARDtalk. -- thank you. Damp ground into the start of the

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night and then plumbing can -- plummeting temperatures lives of

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with the problem of ice and patchy fog this morning. -- leaves us.

:24:58.:25:06.

Towards the east, overnight showers have lingered. Showers running

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