International courts are more vital than ever to protect human rights

There’s a disturbing trend sweeping Europe, as policymakers and judicial authorities alike attempt to skirt the authority of transnational courts. First, in keeping with Poland’s snowballing rule of law crisis, the country’s top court ruled that national law supersedes EU law in key areas and that the European Court of Justice (ECJ) does not have authority to rule on issues such as Polish procedures for the appointment of judges. Even more troublingly, the controversial ruling was swiftly followed by UK Justice Minister Dominic Raab’s broadside on the European Court of Human Rights (ECHR). In a move which legal experts described as “profoundly problematic in constitutional terms”, Raab declared that the UK Human Rights Act will be overhauled to include a “mechanism” to “correct” rulings by the Strasbourg court.

It’s not hard to understand why the British and Polish governments, known for their nationalistic policies, would be opposed to supranational justice. Institutions like the ECHR, however, serve a critical and unique role. Dubbed the “world’s most effective international human rights tribunal”, the ECHR fulfils several essential positions, from serving as a court of last resort for cases which have exhausted domestic remedies and addressing overreach by national authorities, to putting pressure on contracting states with frequent human rights violations, such as Turkey.

ECHR intervention in Rybolovlev case carries far-reaching implications for digital privacy

One of the most recent cases which the ECHR has agreed to hear underscores the court’s role as an impartial arbiter, able to gauge potential overreach by the 47 member states over which the Strasbourg court has jurisdiction. On October 11th, the ECHR notified the Monegasque justice ministry that it accepted the case brought by Russian billionaire Dmitry Rybolovlev and his lawyer, Tatiana Bersheda, suggesting that Monaco infringed article 8 of the European Convention on Human Rights, which deals with the right to private life and correspondence, including questions of attorney-client privilege.

The case is a small component of a long running international legal battle in which Rybolovlev alleges that the Swiss art dealer Yves Bouvier defrauded him out of over $1 billion by adding hidden commissions onto art transactions, but the particular component which the ECHR will scrutinize could have broad implications for questions of attorney-client privilege and the right to private communications.

The thorny questions before the Strasbourg court concern a problematic search of a telephone belonging to Bersheda. Rybolovlev’s lawyer had voluntarily turned over the device so that the Monaco authorities could verify that a recorded conversation, which Bersheda considered evidence against Bouvier, had not been edited. After verifying the authenticity of the recording, however, Judge Edouard Levrault, a French investigative judge attached to Monaco’s justice department at the time, inexplicably went a step further, hiring IT experts to uncover thousands of deleted photos and texts off of Bersheda’s phone.

The key question before the Strasbourg court is whether Monaco’s judicial authorities had any right to the deleted data in the first place, or if Levrault’s intensive search violated Bersheda’s right to her private communications and privilege as Rybolovlev’s lawyer. If the ECHR determines that the data retrieved from Bersheda’s phone was obtained in a way that violated her human rights, it would be a fresh setback for Levrault, who is already being investigated by the French Justice Ministry for his behavior in the case pitting Rybolovlev against Bouvier. “I have been repeating from the outset that the investigating judge did not have the right to search Bersheda’s phone to exhume the SMS messages. There was an irremediable breach of professional secrecy. The whole procedure has been vitiated”, said Hervé Temime, Dmitry Rybolovlev’s lawyer.

Whatever the ECHR decides, it will likely be a decision which would have ramifications far beyond the Rybolovlev-Bouvier case, as questions over digital privacy have become increasingly prominent in recent years. When determining that electronic device searches required a warrant, U.S. Chief Justice John Roberts argued that going through someone’s cell phone could provide more information about their life and behavior than searching their house, and the ECHR has previously held that wide-ranging searches of electronic data must be justified by specific aims.

Strasbourg court essential to holding regimes like Erdogan’s to account

In addition to the ECHR’s vital role establishing a common European jurisprudence on issues as critical as data privacy, the court is often the only avenue to justice for people who have been wronged by regimes with little respect for the rule of law—such as Erdogan’s Turkey, recently singled out as one of the world’s worst countries in terms of checks and balances on the government with regards to human rights issues.

Just last week, the Strasbourg court took aim at Turkey’s infamous Article 299, which makes it a crime to insult the President of Turkey. The ECHR found that Vedat Sorli, who was given a suspended 11-month jail sentence for sharing two caricatures of Recep Tayyip Erdogan on Facebook, had been unjustifiably detained and prosecuted, and that Sorli’s freedom of expression had been violated.

Like many of the cases which the ECHR accepts, the Sorli judgment could have repercussions far beyond the individual plaintiff’s circumstances. Turkey has increasingly leaned on Article 299 to stifle dissent; an investigation earlier this year revealed that between 2014 and 2019, a staggering 128,872 probes were opened in response to supposed insults against Erdogan. Thousands have been sentenced to prison or hefty fines, including schoolchildren. This crackdown has unsurprisingly had a chilling effect—one report last year found that 65% of Turkish citizens fear that they will “get in trouble” for sharing their political views openly on social media, the highest percentage among the 37 countries surveyed.

With Turkey’s own courts thoroughly in Erdogan’s pocket, the only possible recourse for the thousands of people wronged by Article 299 was the ECHR. While Turkey has a problematic track record of flouting ECHR judgments, Ankara may feel some pressure to reform the law in question given that it’s already facing infringement proceedings in the Council of Europe.

A case like Sorli’s only underlines the absurdity of Dominic Raab’s idea to have a “mechanism” to “correct” ECHR rulings. The Strasbourg court is effective precisely because it offers a remedy for human rights violations which national courts are unable or unwilling to address. As the wide array of cases on its docket attest, this is a unique ability which is vital to preserving human rights across the continent.

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