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

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

HARDtalk. Welcome to HARDtalk, I am Stephen

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

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

of Human Rights. It is an institution steeped in European

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

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

undemocratic, unaccountable, an infringement on national

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

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

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

extraordinarily powerful? Yes, I would accept that without any

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

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

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

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

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

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

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

often the case with international relations and international law.

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

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

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

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

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

function of the European Court and the functioning of the European

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

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

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

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

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

human rights and basic individual liberties, you are the ultimate

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

been exhausted and that is a requirement of the convention that

applicants need to exhaust local remedies. But I attach great

importance to the dialogue also, especially with domestic courts and

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

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

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

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

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

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

implemented. In the domestic system, however how decisions are

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

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

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

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

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

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

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

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

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

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

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

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

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

problem of resources. That is absolutely true. With limited

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

problem is that you have to acknowledge certain countries within

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

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

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

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

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

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

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

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

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

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

concerning countries, you mention the backlog has been reduced over

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

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

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

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

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

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

are a little bit disappointed that the challenge comes from a

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

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

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

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

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

parliamentary sovereignty arises. You use the word disappointed,

surely you should be worried? Worried with Britain and its

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

rights and liberties, fundamentally seriously. You should be worried

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

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

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

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

two judgements that have been heavily criticised but it depends

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

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

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

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

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

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

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

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

either constitutionally formed Supreme Court of this country. The

very idea of international fundamental rights, as it has been

set up by the convention is precisely to in trust the

interpretation and the application of the European Convention to a

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

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

you push President and Strasbourg caselaw as something which the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

look the United Kingdom and challenges that you face today.

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

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

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

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

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

judgement. If you ask people in the street if

you agree that the most heinous criminals should spend their lives

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

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

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

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

more the possibility to have the sentence reviewed after many years

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

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

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

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

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

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

judgement of the European Court is inconsistent with international law

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

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

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

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

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

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

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

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

unacceptable, a violation of human rights standards. The British

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

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

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

that a blanket ban preventing all prisoners from voting is

inconsistent with the convention and incidentally this debate in the UK

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

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

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

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

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

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

here in the UK that a majority of parliamentarians may reconsider

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

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

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

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

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

ban is this proportionate and inconsistent with the convention.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

have constantly interpreted and domestic courts have done so as

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

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

draft of the convention did not envisage the development of

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

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

interpreted in the light of changing circumstances. That is very

important and is sometimes misrepresented. We do not create new

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

convention rights in the light of changing circumstances without

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

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

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

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

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

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

that not implementing or executing the judgement of the European Court

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

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

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

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

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

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

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

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

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

problem if a country with a long-standing tradition of

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

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

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

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

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

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

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

countries will look at Britain standing at your courts and think

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

absolutely right with your analysis concerning other countries. That is

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

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

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

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

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

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

unravelling of this 60 year experiment in Pan European human

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

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

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

homosexuals. Very loud noises in the Russian parliament along those

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

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

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

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

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

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

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

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

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

disaster. For everyone. For everyone dedicated to the effective

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

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

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

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

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

is right now actively contemplating walking away from the European Court

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

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

would not be in the interests of effective human rights protection

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

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

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

night and then plumbing can -- plummeting temperatures lives of

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

Towards the east, overnight showers have lingered. Showers running