:00:00. > :00:00.the country reported its last case. Now on BBC News, it is time for
:00:00. > :00:17.HARDtalk. Welcome to HARDtalk, I am Stephen
:00:18. > :00:21.Sackur. IM just one of roughly 800 million Europeans whose fundamental
:00:22. > :00:26.rights and liberties are supposed to be safeguarded by the European Court
:00:27. > :00:29.of Human Rights. It is an institution steeped in European
:00:30. > :00:34.idealism and ambition. But does it work? My guess is that President of
:00:35. > :00:41.the Strasbourg -based court, Dean Spielman. Critics condemn it as
:00:42. > :00:41.undemocratic, unaccountable, an infringement on national
:00:42. > :01:18.sovereignty. Do they have a case? Dean Spielman, welcome to HARDtalk.
:01:19. > :01:21.Thank you for inviting me. Would you accept that as far as European
:01:22. > :01:25.citizens like me are concerned, you're caught is actually
:01:26. > :01:30.extraordinarily powerful? Yes, I would accept that without any
:01:31. > :01:34.reservation. Our court is there to be powerful, I would say. That is
:01:35. > :01:39.what the original drafters wanted when they set up the convention. It
:01:40. > :01:42.is a troubling to you that I would bet you that if I left the studio
:01:43. > :01:46.and went out on the streets of London or any other big city, and
:01:47. > :01:53.they asked people exactly what the European Court of human rights was
:01:54. > :01:56.for, how it was constituted how it related to other European and
:01:57. > :02:02.national judicial authorities. I bet people would have a clue. That is
:02:03. > :02:09.often the case with international relations and international law.
:02:10. > :02:17.With other questions that people sometimes... Do not know. For the
:02:18. > :02:21.courts to be credible and to be accessed it as part of the judicial
:02:22. > :02:27.culture, don't people have to understand the basics of what they
:02:28. > :02:30.are and what they are for? Absolutely. They need to understand
:02:31. > :02:36.and I think that everyone should do his or her best to explain the
:02:37. > :02:42.function of the European Court and the functioning of the European
:02:43. > :02:45.Convention. We are doing that. We have programmes in Strasbourg to
:02:46. > :02:48.explain and we have many visitors who come to the court to visit and
:02:49. > :02:53.we are more than happy to explain the system and how it works. Let's
:02:54. > :02:59.make a stab at doing it now. Would be fair to draw a very loyal -- lose
:03:00. > :03:03.parallel with the US Supreme Court. In the sense that when it comes to
:03:04. > :03:08.human rights and basic individual liberties, you are the ultimate
:03:09. > :03:12.judicial authority. For all of the member states of the council of
:03:13. > :03:17.Europe and that is 47 nations. You are the ultimate judicial arm. The
:03:18. > :03:24.convention trusted us to interpret and to try and Rick invent. I would
:03:25. > :03:29.be reluctant to see our court in the same way as the Americans see the
:03:30. > :03:34.Supreme Court. We are not the Supreme Court of Europe. We do not
:03:35. > :03:39.quash decisions of national courts. We do not take the place of the
:03:40. > :03:43.legislature. Although we find violations from time to time, often.
:03:44. > :03:49.So in fact you do overturn decisions? You challenge them, you
:03:50. > :03:55.decreed them to be violations and you demand that changes made. We say
:03:56. > :03:58.that in particular cases there has been violation of the convention.
:03:59. > :04:04.That is what the drafters wanted us to do. The other point of parallel
:04:05. > :04:08.is that there is no comeback from your decisions. There is no grounds
:04:09. > :04:14.for appeal, nowhere to appeal to. Yours is the final decision. It
:04:15. > :04:18.depends what you mean by the final say. Chronologically, it may well be
:04:19. > :04:22.either case. The very last moment when all the domestic remedies have
:04:23. > :04:27.been exhausted and that is a requirement of the convention that
:04:28. > :04:34.applicants need to exhaust local remedies. But I attach great
:04:35. > :04:37.importance to the dialogue also, especially with domestic courts and
:04:38. > :04:44.in particular, with Supreme Court is in Europe. You call it a dialogue,
:04:45. > :04:49.but in the end one has to define where ultimate power and authority
:04:50. > :04:52.lies. You are being a bit shy about it, but it ultimately lies with your
:04:53. > :04:56.court. You can demand that your decisions be acted upon at a
:04:57. > :05:02.national level. That is absolutely correct. Our decisions are binding.
:05:03. > :05:08.The conventions as it very clearly. Our decisions need to be
:05:09. > :05:11.implemented. In the domestic system, however how decisions are
:05:12. > :05:16.implemented, is part of the marginal appreciation. The law can be changed
:05:17. > :05:26.or the case can be changed but my point is, that we do not... Quash
:05:27. > :05:29.domestic decisions of court. I think the discussion who was supreme in
:05:30. > :05:33.Europe is not the correct way of putting it. I suspect we will get
:05:34. > :05:39.back to that when we get to individual cases. We have agreed
:05:40. > :05:42.that is a very powerful court. You say, rightly so because of the
:05:43. > :05:47.importance of the Convention of human rights in Europe. There is a
:05:48. > :05:51.number the picture way in which I see the court to be failing. That
:05:52. > :05:57.is, you do not appear to have the resources to be able to match the
:05:58. > :06:01.requirements placed upon you. You have tens of thousands of cases in
:06:02. > :06:04.your backlog, you have thousands of new cases coming before the court
:06:05. > :06:10.every year. You only have 47 judges and it is plain that the resources
:06:11. > :06:14.you have, the capacity cannot cope with the demand. It is always a
:06:15. > :06:21.problem of resources. That is absolutely true. With limited
:06:22. > :06:26.resources, we do quite a good job I would say. Our registry is extremely
:06:27. > :06:35.efficient. For example, by the end of 2011, there were 160,000 cases in
:06:36. > :06:39.the docket. The latest statistics, which were elaborated a few days ago
:06:40. > :06:46.will show that we cut it down to about 98,000 cases. We are now below
:06:47. > :06:51.the threshold of 100,000. Is that supposed to be good news for the
:06:52. > :06:57.people who are involved in those 100,000 cases which are still the
:06:58. > :07:03.backlog? I think that it is very good news that we deal officially
:07:04. > :07:09.with the massive influx of cases. Everyone can sign the petition to
:07:10. > :07:13.Strasbourg. We need to deal with this addition, that is the right of
:07:14. > :07:17.the individual, it is the cornerstone of our system. We need
:07:18. > :07:22.to find ways to deal with all those cases efficiently and we have done a
:07:23. > :07:27.great asset over the last two years will stop thanks to the registry in
:07:28. > :07:31.particular, but also was singled judges may now decide on those
:07:32. > :07:37.issues we are able to cope with the backlog. If you think raping is
:07:38. > :07:40.having 98,000 cases outstanding, I suppose that is true. Another
:07:41. > :07:43.problem is that you have to acknowledge certain countries within
:07:44. > :07:51.your council membership inking maybe, Russia, Ukraine, Turkey have
:07:52. > :07:54.judicial systems which are so poor, so dysfunctional that vast numbers
:07:55. > :07:59.of complainants, as soon as they don't get satisfaction in local
:08:00. > :08:02.courts will not come to you. Saying that the local court system is not
:08:03. > :08:08.capable of delivering individual justice. That is a problem. I would
:08:09. > :08:12.agree with you if our court would be considered as being a court of
:08:13. > :08:15.appeal. A super European court of appeal which is not the case.
:08:16. > :08:20.However, many of those cases where it its very fundamental human rights
:08:21. > :08:27.issues, especially coming from countries which don't have the same
:08:28. > :08:33.democratic tradition as other members... Of the system. Even
:08:34. > :08:38.concerning countries, you mention the backlog has been reduced over
:08:39. > :08:43.the last two years. Considerably reduced over the last two years.
:08:44. > :08:48.Listen to you and it sounds as though things are going jolly well.
:08:49. > :08:52.It seems to me that your court perhaps faces the most concerted
:08:53. > :08:57.challenge to its legitimacy that it has faced in 60 years. The challenge
:08:58. > :09:03.comes from the United Kingdom. Would you accept that? I accept there is
:09:04. > :09:07.an ongoing discussion here in the United Kingdom. I must say that we
:09:08. > :09:14.are a little bit disappointed that the challenge comes from a
:09:15. > :09:18.long-standing member of the system. The UK has been into metal in
:09:19. > :09:24.setting up the system. The drafters of the convention where British
:09:25. > :09:28.lawyers. Not only British lawyers but for example one man played a
:09:29. > :09:32.major role in setting up the system. We are a little disappointed that
:09:33. > :09:40.now, 60 years after the system has been in place, the question of
:09:41. > :09:42.parliamentary sovereignty arises. You use the word disappointed,
:09:43. > :09:47.surely you should be worried? Worried with Britain and its
:09:48. > :09:54.tradition, a fine, proud tradition of legal integrity, of taking human
:09:55. > :09:57.rights and liberties, fundamentally seriously. You should be worried
:09:58. > :10:04.that such a country looks at the role you play in European human
:10:05. > :10:11.rights... And liberty issues and sees a fundamental problem. I think
:10:12. > :10:15.it depends also on how the judgement we deliver, in particular concerning
:10:16. > :10:21.English cases or UK cases are explained to the public. There are
:10:22. > :10:25.two judgements that have been heavily criticised but it depends
:10:26. > :10:29.also on the explanation of the judgement. How you explain to the
:10:30. > :10:36.public what the court has said. Or more importantly, what the course
:10:37. > :10:38.has not said. We will get to individual cases because I suspect
:10:39. > :10:47.we will talk about the same to cases. It is the principle I am
:10:48. > :10:49.getting, Chris Grayling is has lost democratic acceptability. He says
:10:50. > :10:53.that the government in this country is going to use legislation to
:10:54. > :10:56.ensure that the Supreme Court in England and Wales is actually the
:10:57. > :11:01.Supreme Court, that you cannot in the end, second-guess decisions made
:11:02. > :11:07.either constitutionally formed Supreme Court of this country. The
:11:08. > :11:12.very idea of international fundamental rights, as it has been
:11:13. > :11:16.set up by the convention is precisely to in trust the
:11:17. > :11:23.interpretation and the application of the European Convention to a
:11:24. > :11:29.international court. The point that not just politicians, but judges
:11:30. > :11:35.made in the UK, one appeals judge court, says that the problem is that
:11:36. > :11:40.you push President and Strasbourg caselaw as something which the
:11:41. > :11:45.United Kingdom has to regard as inviolable. When in fact, the UK has
:11:46. > :11:49.signed to the convention but has not signed to recognise the state has of
:11:50. > :11:54.president caselaw, you'll buy your court. There is a fundamental
:11:55. > :12:00.difference. I think that the Human Rights Act strikes a very careful
:12:01. > :12:06.concerning precisely the problem you raise. What is the relation between
:12:07. > :12:11.the master chords and the European Court of Human Rights? The Human
:12:12. > :12:18.Rights Act is a marvellous piece of legal engineering. Precisely because
:12:19. > :12:23.it says that domestic courts take into account our caselaw. That is
:12:24. > :12:29.not mean our caselaw is binding president for the Supreme Court. The
:12:30. > :12:32.Supreme Court has over the years done a marvellous job of taking into
:12:33. > :12:40.account our caselaw and applying the same principle as we do. Lord
:12:41. > :12:45.Bingham once said, no more but certainly no less. That is precisely
:12:46. > :12:50.what the Supreme Court has followed over the years. Even cases where the
:12:51. > :12:55.Supreme Court went further than what we require as minimum standards in
:12:56. > :13:03.our caselaw. That is what I mean. You make it sound -- you make it
:13:04. > :13:08.sound like a well oiled machine. The fact is, it just ain't sorry. If you
:13:09. > :13:12.look the United Kingdom and challenges that you face today.
:13:13. > :13:16.Let's take the first one, that is the issue of sentences for the most
:13:17. > :13:21.heinous crimes. In the United Kingdom, the government mix it plain
:13:22. > :13:31.that it wants a whole life sentence to mean a whole life without review.
:13:32. > :13:37.The British government is determined that it will stand by what it means
:13:38. > :13:43.by a whole life sentence. Ella make it is about the way it you present a
:13:44. > :13:47.judgement. If you ask people in the street if
:13:48. > :13:51.you agree that the most heinous criminals should spend their lives
:13:52. > :13:56.in prison, most interlocutors would say yes, of course. That is not what
:13:57. > :14:00.the court has said. The court has not said that you cannot sentence
:14:01. > :14:05.anyone to life imprisonment. The court has said that after a certain
:14:06. > :14:10.amount of time, you need to offer some kind of review. So that it is
:14:11. > :14:15.more the possibility to have the sentence reviewed after many years
:14:16. > :14:18.that was at the heart of the case. We did not say that life
:14:19. > :14:24.imprisonment as such would be incompatible. You may know that in
:14:25. > :14:27.the last few days, Chris Grayling has sent a note to Europe that the
:14:28. > :14:32.British government has no intention on backing down on this. The whole
:14:33. > :14:39.life tariff will remain without review. What will you do about it?
:14:40. > :14:44.If that is the case, Mr Grayling must be aware that not executing a
:14:45. > :14:49.judgement of the European Court is inconsistent with international law
:14:50. > :14:55.to begin with. And with the convention. What will you do about
:14:56. > :14:58.it? We are probably getting other cases. We will decide on the merits
:14:59. > :15:05.of those cases. That is not the question. What will the committee
:15:06. > :15:12.do? The committee has the obligation to supervise the execution of our
:15:13. > :15:14.judgements. We will come back to sanctions that you may be able to
:15:15. > :15:20.place upon a government which refuses to act but let us look at
:15:21. > :15:26.another case. Votes for prisoners in British jails. Prisoners in Britain
:15:27. > :15:30.do not have the right to vote. Your court has decreed that that is
:15:31. > :15:34.unacceptable, a violation of human rights standards. The British
:15:35. > :15:39.government has made it plain that they are prepared to talk about some
:15:40. > :15:47.minor adaptations but this ban is not negotiable. Again, we did not
:15:48. > :15:54.say that prisoners should all get the right to vote. What we said is
:15:55. > :15:59.that a blanket ban preventing all prisoners from voting is
:16:00. > :16:07.inconsistent with the convention and incidentally this debate in the UK
:16:08. > :16:09.has now led to a report by the joint committee and the joint committee
:16:10. > :16:14.takes the same view that a blanket ban would clearly be inconsistent
:16:15. > :16:19.with the Strasbourg case. There are alternative solutions... Parliament
:16:20. > :16:25.voted 200 and something votes to 20 that it would maintain the ban. Does
:16:26. > :16:31.that not matter to you? Of course it does. I would hope that after
:16:32. > :16:36.reading the report and after having a very thorough discussion as always
:16:37. > :16:45.here in the UK that a majority of parliamentarians may reconsider
:16:46. > :16:49.their position. I would say that the majority would agree that the
:16:50. > :16:54.Minister of Justice should -- that laws to be made in the British
:16:55. > :16:59.Parliament. You are de facto making laws in Strasbourg. That is not what
:17:00. > :17:02.we're doing. You at precisely saying that British law at the British law
:17:03. > :17:06.at the stand cannot stand. We are saying that the break -- a blanket
:17:07. > :17:13.ban is this proportionate and inconsistent with the convention.
:17:14. > :17:19.There are options on the table. Parliament is have the widest margin
:17:20. > :17:24.to fight -- Parliament had the widest margin to find a solution.
:17:25. > :17:28.You have gotten yourself into a heck of a confrontation here with the UK
:17:29. > :17:33.government. David Cameron said that it made him feel physically ill to
:17:34. > :17:39.imagine that prisoners would be given the right to vote. Looking at
:17:40. > :17:43.some of the most popular newspapers in the UK, they have been running
:17:44. > :17:48.headlines in the past months speaking of terrorists, rapists, and
:17:49. > :17:50.paedophiles getting the vote. I'm sure you've read the opinion polls
:17:51. > :17:56.that show a clear majority of British people do not want prisoners
:17:57. > :17:59.to have the vote. You have got yourself and the court into a full
:18:00. > :18:02.on confrontation with not just the British government and not just the
:18:03. > :18:07.British public but the entire British system. Once again, it
:18:08. > :18:13.depends on how you explain the judgement of the public. If you say,
:18:14. > :18:18."would you agree that rate that and axe murderers should be deprived of
:18:19. > :18:23.the right to vote? " It is clear that most people would say not to do
:18:24. > :18:29.so. That is not the court said. The court has said that the blanket ban
:18:30. > :18:36.is inconsistent with the convention. There are options on the table. Does
:18:37. > :18:40.it not worry you that some of the most senior and respected legal
:18:41. > :18:47.minds in the UK accuse you, including Lord Sumption of becoming
:18:48. > :18:55.a flag bearer for judge-made law extending well beyond the text with
:18:56. > :18:59.which you charge of applying. I read that very interesting lecture in
:19:00. > :19:03.Kuala Lumpur. He referred to the notion of a living instrument. We
:19:04. > :19:07.have constantly interpreted and domestic courts have done so as
:19:08. > :19:11.well, the Constitution as being a living instrument. Lord Sumption
:19:12. > :19:18.Chris -- questions and criticises this approach. It is clear that the
:19:19. > :19:21.draft of the convention did not envisage the development of
:19:22. > :19:30.technology or bioethics or DNA questions. It is clear to us and to
:19:31. > :19:33.the domestic courts all over Europe that the convention needs to be
:19:34. > :19:39.interpreted in the light of changing circumstances. That is very
:19:40. > :19:45.important and is sometimes misrepresented. We do not create new
:19:46. > :19:50.rights. I want to be very clear on that principle. We interpret the
:19:51. > :19:53.convention rights in the light of changing circumstances without
:19:54. > :19:58.creating new rights. That is not the way in which many British judges as
:19:59. > :20:01.well as politicians see it. Let us get back to this point about
:20:02. > :20:07.sanction, that punishment. If Britain refuses to tow your line.
:20:08. > :20:10.Chris Grayling, the Secretary of State for Justice says that there is
:20:11. > :20:12.nothing you can do and even if you impose fines upon the British
:20:13. > :20:18.government, the British government doesn't have to pay them. I think
:20:19. > :20:23.that not implementing or executing the judgement of the European Court
:20:24. > :20:26.would be and is a violation of international law. The joint
:20:27. > :20:32.committee in the reporter mentioned earlier made that very clear. Would
:20:33. > :20:36.Britain then have to be thrown out, in your view, of the Council of
:20:37. > :20:40.Europe, if it refused to acknowledge and abide by the rulings of the
:20:41. > :20:45.European Court? That is a political question. As the president of the
:20:46. > :20:54.court, I don't want to enter the political arena. You must understand
:20:55. > :20:57.that. It is germane to a question. The British government says it is
:20:58. > :21:00.not necessarily the case that Britain would be thrown out of the
:21:01. > :21:07.Council of Europe. I want to know what you think. It is of course a
:21:08. > :21:12.problem if a country with a long-standing tradition of
:21:13. > :21:16.protecting human rights... I would like to pay tribute to the work
:21:17. > :21:22.which has been done by the UK in the rest of the world to promote human
:21:23. > :21:27.rights. That this country would not comply with the rule of law... That
:21:28. > :21:31.is why it may be, with all due respect, for you to push these
:21:32. > :21:36.issues like the rights of prisoners to vote. You could stand to lose
:21:37. > :21:41.more than the British government. The British reputation of good law
:21:42. > :21:43.and integrity and human rights respect. It could be that some
:21:44. > :21:49.countries will look at Britain standing at your courts and think
:21:50. > :21:54.that if Britain can stand up, so can we. What is the downside? You are
:21:55. > :21:58.absolutely right with your analysis concerning other countries. That is
:21:59. > :22:02.not the reason for us not to interpret or apply the convention of
:22:03. > :22:06.the court into our principles. We would introduce a double standard.
:22:07. > :22:12.We would make a different decision when a long-standing member Council
:22:13. > :22:16.of Europe is concerned and are more strong decision when other countries
:22:17. > :22:21.are concerned. That is precisely what the European Court never wanted
:22:22. > :22:27.to do. To apply double standards. We could be seeing the beginning of the
:22:28. > :22:30.unravelling of this 60 year experiment in Pan European human
:22:31. > :22:35.rights justice. It is not just Britain. For example, the Russians
:22:36. > :22:41.are right now saying that they see no reason to abide by your rulings
:22:42. > :22:45.on some of the issues concerning gay rights and the treatment of
:22:46. > :22:48.homosexuals. Very loud noises in the Russian parliament along those
:22:49. > :22:53.lines. It could be that we are about to see the fragmentation of the
:22:54. > :23:00.European Court of Human Rights. If you mentioned this problem raised
:23:01. > :23:04.by, you say, Russia. With this argument, we could also then adopt a
:23:05. > :23:09.different case law concerning Russia or concerning any other country. We
:23:10. > :23:14.never did that. We never applied double standards. If you lose
:23:15. > :23:17.Britain. If Britain walked away from the European Court of Human Rights,
:23:18. > :23:22.it becomes much less difficult for a country like Russia to walk away as
:23:23. > :23:26.well. Of course. You are close to facing that danger. I insane that if
:23:27. > :23:32.Britain were to leave the European Convention, it would be a clinical
:23:33. > :23:34.disaster. For everyone. For everyone dedicated to the effective
:23:35. > :23:39.protection of human rights, not only in Europe but in the rest of the
:23:40. > :23:44.world because we have a unique system of protecting human rights,
:23:45. > :23:48.and very powerful system, yes, admittedly that is true but it has
:23:49. > :23:52.worked so well over the years. It has given Europe so much and also
:23:53. > :23:58.the United Kingdom. What is a warning to David Cameron whose party
:23:59. > :24:04.is right now actively contemplating walking away from the European Court
:24:05. > :24:08.of Human Rights? My warning would be that Britain should be very careful
:24:09. > :24:15.not to lose its credibility by taking such an important move. It
:24:16. > :24:17.would not be in the interests of effective human rights protection
:24:18. > :24:21.and I am personally convinced that it would not serve the British
:24:22. > :24:23.interests. Dean Spielmann, we have to enter there. In Q4 being on
:24:24. > :24:53.HARDtalk. -- thank you. Damp ground into the start of the
:24:54. > :24:57.night and then plumbing can -- plummeting temperatures lives of
:24:58. > :25:06.with the problem of ice and patchy fog this morning. -- leaves us.
:25:07. > :25:07.Towards the east, overnight showers have lingered. Showers running