Elephants in courtrooms – II

ECHR: office Strasbourg France

The first episode [1] of Elephants in Courtrooms was about Pastafarism and the Dutch Council of State. This episode is kind of a sequel. The judges who came up with the verdict criticised in episode I referred extensively to the ‘European’ ECHR. That organisation is the subject of this episode.

For substantiation, the Dutch judges referred to ‘European’ rulings that would deal with that definition. This episode is about those quotation marks around European. The next episode is about questionable aspects of those European rulings themselves. The context is always judicial activism [2].

The Council of ‘Europe’

So, those references by the Council of State were to the European Court of Human Rights: abbreviated to ECHR (sometimes a lower case t is inserted. The C can stand for Convention=treaty as well as for Court). Although this court uses in its corporate identity a blue field with yellow stars that we know mainly from (the flag of) the European Union, formally there is no relation whatsoever between this Court and the Union.

This court is linked to the Council of Europe. This council was established at the initiative of a number of European countries, but now has 47 countries, 20 more than the EU. Among those 20 others, we also find Russia and Turkey as full members. Both of these countries are partly located on the European continent: one for about 40%, the other for less than 3% of the territory. The Wikipedia text on the Council of Europe correctly states:

It is noteworthy that [the CoE] statutes reserve membership for states in Europe, but do not define Europe.

The Caucasus countries Georgia, Azerbaijan and Armenia are also full members, even though they are pre-eminently countries on the border of Europe and Asia.

Russia, Turkey and Kazakhstan

Russia became a member in 1996. This was an encouraging development. Sensational in fact, because the establishment of the Council of Europe had been very much about building a dam against the advancing communism of the Soviet Union. Because the Russia of 1996 could no longer be compared with the Soviet Union from which it had emerged, Russia could become a member.
Conversely, now that Turkey is undergoing a dramatic change under Erdowahn, it appears that it can remain a member. The comparison with Kazakhstan –see note 3– is possibly even more painful than that with Russia. Even more remarkable: Turkey does distance itself more from the Council, but vice versa, no attempt is being made to deprive Turkey of membership [3], just as they remain a member of NATO in spite of everything.

Origin of judges

Big or small: each of the member states provides one judge who has a place in that company not “on behalf of” but “because of” the country of origin. We know such a construction from the Commissioners of the European Union. Rulings are delivered by a group of (seven) of these judges.

The ruling which the Council of State so emphatically referred to in the Pastafarianism ruling -referred to as the ‘Eweida and others v. Great Britain’ case- was, for example, delivered by judges from Iceland, Great Britain, Poland, Finland, Bulgaria, Montenegro and Malta.

That still sounds quite European: most of that seven are EU countries, and few will have difficulty in referring to Iceland as Western European. Iceland is much more ‘western’ than Albania. Or Germany. The first two judges mentioned, by the way, did not completely support the verdict …

In the curious case C.N. (also) against GB, the seven were formed by the Pole, the Briton, the Finn, the Cypriot, the Albanian, the Bulgarian and the Montenegrin. I will return later to why this was such a remarkable verdict.

A more recent ruling by the European Court was even more remarkable. It supported the Austrian government in the case against Mrs. Elizabeth Sabaditsch-Wolff. She had expressed a disapproving opinion of the child rape by founder Mohammed -in Muslim circles widely accepted as true- and was therefore fined.

Key concepts from that ruling are “justified indignation” [of Muslims], “balance between freedom of expression and religious feelings”, “religious peace” and the blatant lie “without factual basis”. The seven judges in this case came from Germany, France, Ireland, Lithuania, Austria, Azerbaijan and Georgia.

Crime that is ‘out of date’

I looked for some background of this sevensome. The amount of information easily found about these judges differs strongly. The German Angelika Nußberger really stands out. Please note: this is the Vice President of this ‘European Court’. She previously worked for the international trade union organisation ILO... This lady has studied a lot on the legislation in Eastern Europe, including Russia.
This link goes to a video lesson of hers, which can be found on UNWebTV: from the United Nations Audiovisual Library of International Law. To be honest, I also find the existence of this UNWebTV in itself a bit disturbing. Really disturbing, however, is what this Nußberger claims. Specifically about the death penalty.

According to her, the human rights declaration dates from “just after THE war” (2:00) (my emphasis). Back then (!) you had “war-criminals”. When pronouncing “death penalty”, she runs out of breath for a moment and says: “execution of the death penalty was not a violation of human rights”. However, she continues: “Today we see the death penalty not only as a violation of human rights, but a ban on the death penalty is one of the cornerstones of the ‘European Human Rights protection system’.” A state that allows (Sic) the death penalty can’t even be a member of the convention. (2:37-2:47). [4]

In 2017 it has become clear that Turkey is going to reintroduce the death penalty. It was even an election promise of Erdowahn and he also receives support from the ultra-nationalist MHP. Surely Nußberger should know something about the developments in that country. In 2016, she researched the question: Does the EU’s refugee agreement with Turkey violate international law? Its summary ends as follows:

She laments that in times of mass migration, even minimum standards could slip away. The ECHR recognizes the difficulties (!) faced by the states of Europe. Nevertheless, given the absolute nature of Article 3 of the ECHR, it follows a clear line. Even in this crisis, minimum human rights standards should be respected. Even in times of crisis, one should not deviate from the solutions (!) described in the law.

On the relationship between the court and Turkey, Nate Schenkkan, of Ahval, wrote:

Since the coup attempt, the ECtHR has repeatedly refrained from hearing cases related to the crackdown both because of the individual appeal mechanism, and because of the state of emergency (OHAL) commission that will hear appeals concerning dismissals and closures. With the right of individual application now seemingly annulled, the ECtHR is faced with an urgent question of response where individuals’ rights are being violated, as in the dozens of cases of imprisoned journalists.

Refrained: so, they didn’t do it. Erdowahn simply ignores the Court’s ruling on the imprisonment of the most important Kurdish opposition leader Demirtas. The Dutch Prime Minister is on very good terms with Erdowahn, by the way.

Activist judges

According to the concise Wikipedia page on the Frenchman André Potocki, this top lawyer wrote an article entitled “La mondialisation a-t-elle une influence sur le rôle du juge?”, but even the unsurpassed Wayback Machine can’t find the article. I find it hard to imagine that Wikipedia made up the existence of it out of thin air. A strange case, it can have all sorts of causes, but it doesn’t lessen my unease about judicial activism either. 

The Irish Siofra O’Leary studied at the European University Institute (EUI) in Florence…
She previously worked at the Court of Justice of the EU and also wrote books. For example, this one, titled: “The Evolving Concept of Community Citizenship”.
Yes, on EU citizenship.
The subject has occupied this lady for some time. She already wrote about it as a student: Nationality and Community Citizenship – A Tale of Two Unhappy Bedfellows (1992). She expanded this into the book The Evolving Concept. Under yet another title, it was published by the IPPR, which in its own words wanted to offer “an alternative to Free Market think tanks“…
Title: European Union Citizenship – Options for Reform. On page 40 of this version we find this clarity about her political approach:

Finally, the creation of a genuine European Union along more federal lines would require delimitation of the people who belong to the Union.

It becomes even clearer on page 41. Context is still ‘constructing a European identity’.

.. many of the original objectives behind the union citizenship were whittled away once those objectives were translated into concrete rights in a form in Article 8 EC which was acceptable to all Member States. They are the result of political compromise.

The Lithuanian, Mārtiņš Mits, also co-authored a book. One with a nearly telling title: The Impact of the ECHR on Democratic Change in Central and Eastern Europe: Judicial Perspectives. For a mere 85 euros you can become the owner of a digital copy of the e-book version. Fortunately, there is a free preview. It starts like this:

High hopes were placed in the ability of the European Convention on Human Rights (ECHR) and the European court of Human Rights to help realise fundamental freedoms and civil and political rights in the postcommunist countries.

By that ‘telling’ I actually mean that this opening sentence is enough for two observations: it is absolutely clear that this is judicial activism AND it is clear that judicial activism can also be used for sympathetic purposes and has been used that way in the past. Yes, behind a large part of judicial activism are ‘good intentions’. That’s the venom: the pavement of the road to hell.

Even more outspoken politics?

Mrs Lәtif Hüseynov from Azerbaijan has already ‘advised’ the Dutch government.

In her capacity as President of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (!), she visited the Netherlands in 2013.

The reason for this was the return of a number of illegal immigrants to Nigeria. When you read her report, you get the impression that she conducted her research conscientiously. Most probably, she also learnt about the difference between her country and ours. The main thrust of her report was that, all things considered, everything was perfectly organised in the Netherlands, but she had discovered that the debriefing of the involved Marechaussees could be even more extensive… How lovely.. A lady from Azerbaijan who thinks along with us.

Until recently, the Georgian Lado Chanturia was ambassador to Germany. According to his Twitter account a real civil servant politician. There’s no way you’d think this would be a top lawyer. The judicial group that rallied at the ‘European’ level with the Austrian government in tackling Elizabeth Sabaditsch-Wolff for criticising Mohammed, was completed by an Austrian.

When you read what this Gabriele Kucsko-Stadlmayer said on the day she took office as Chief Justice, it is hard to escape the impression that we are dealing with some kind of pro-migration activist / politician. Salzburger Nachrichten VerlagsgesmbH & Co reports:

The Commission in Brussels had begun a “review process”, but unfortunately a “number of states” prevented the establishment of a distribution mechanism in the European Union.

But distribution of ‘asylum seekers’ among all EU countries is of course only indirectly related to blasphemy. Right?

Rapping national governments on the knuckles

The European Court of Human Rights has already delivered a huge number of rulings.
I’ve only looked at a handful of them and studied only a few closely. It is clear that in many decisions governments are supported against complaining citizens and even more complaints are simply declared inadmissible. In other rulings, it is striking in which special ways governments are sometimes ‘corrected’ by Strasbourg. This was what struck me most about the C.N. versus Great Britain case mentioned earlier.

After being raped several times in her native country, Ugandan Mrs C.N. entered Britain illegally with the help of horrible relatives. She had HIV. The relatives intimidated her and deprived her of her freedom. They also arranged for her to work for a pittance as a domestic helper for an Iraqi couple. There she had one day off per month. The story does not mention whether this Iraqi couple also stayed in GB illegally. Apart from the fact that she had HIV, she also had -who would be surprised about that?- psychological problems. And nobody believed her whole story, although of course there were all sorts of woes.

Misfortune was inflicted on her by Ugandans and Iraqis. When those Iraqis went to visit relatives in Egypt (!), she could not go with them because she had no passport and stayed with one of these Ugandan relatives. That relative went to Uganda himself and then she was intimidated by his wife and again sought the police. During this search, she ended up in hospital.

The supreme ladies and gentlemen in Strasbourg do not waste words on all the misery inflicted on this woman by the Iraqis and Ugandans, and even less on the question of what is and is not true about her story. They focus on the aspect of ‘slavery’ and that the British Government is not doing enough about it.

They drag in all kinds of legal texts up to and including a treaty against slavery from 1926 and refer to a report that worldwide (!) four million women are victims of “a new form (!) of slavery [that] has appeared in Europe, namely domestic slavery”… This approach is appreciated in activist circles: the UK Human Rights blog devoted a long piece to it, with reference to transatlantic slavery. It is called UK not doing enough to combat human trafficking and domestic slavery … 

THE war and those war criminals

The core of the problem with these judicial types actually came to the fore when the Vice-President of the European Court was introduced. Please note: while she is also regularly reminded in her position of contemporary wars and the most terrible types of crimes, she talks about the Second World War as THE war.

The war of the past, whereby the fact that THAT war is in a -in her eyes apparently distant- past, makes her think that speaking of invasion, war and war crimes is ‘out of date’. We are all becoming more and more friendly to each other. Please, also let it dawn on you that Ms. Nußberger is talking about the “European Human Rights protection system.

They have a system. It is reminiscent of the system of zebra crossings in rainbow colors to counteract violence against gays.

Things that Jolien Schukking finds interesting

So, the Netherlands also has someone in that European Court, in which she does not represent the Netherlands. I look at her LinkedIn page and it strikes me how small the world is! The page shows a reference to two Dutch lawyers. And believe it or not: these are Maarten Feteris and Donner! Men to whom I have devoted extensive articles in the context of the dossier on judicial activism!

Screenshot of the Linkedin page

Previously, she worked for the International Association of Refugee Law Judges for two years …

First published in Dutch in 2018 at VerenofLood.nu


1. Most shocking part of that article:
  “In the ‘European’ ruling as well as the Dutch, the implicit, but very clear, message is that when the rules and regulations imposed on the world from religions, and in particular to their own believers, society, i.c. the government, must take this more into account. And it is not about the power of conviction but about power of more or less explicit threats in life here on earth or in an afterlife.”

2. Kazakhstan (with a territory that, like Turkey, is also a few percent in Europe) could also become a full member of the Council of Europe, but that country: “… (…) requested only an observer statute in 1999, to which the CoE Parliamentary Assembly replied that Kazakhstan could become a full member, since it is partly in Europe, but that its deficit in democracy and human rights prevented this.”

3. Link to source. Incidentally, the third major party in the Turkish parliament, the CHP, member of an international organisation of Social-Democrats, previously helped Erdowahn gain a majority in order to imprison MPs from the left-wing HDP, which sympathises with the Kurdish cause…

4. The Tunisian Belgian terrorist and soccerplayer Trabelsi was also not allowed by Nußberger to be deported to the US because there was a threat of a life sentence, she says at 18:25. This comes after her statement on the ‘contemporary view of punishment’. Incidentally, later Trabelsi has been extradited to the US.


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