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The European Court of Human Rights has repeatedly refused to say who ruled last week’s maiden flight to Kigali from MoD Boscombe Down could not take off at the last minute. But now one of the court’s judges Latif Hüseynov has spoken of his surprise at the lack of transparency after being confronted by the Express. Judge Hüseynov was staggered to be informed of the decision not to identify the deciding judge saying: “It was a public decision so the name of the judge should be published for transparency.” When we told Mr Hüseynov about how even the UK Government – one of the parties involved in the case – did not know the judge’s identity, he reacted: “Oh wow.”
The Azerbaijani judge said: “They have to, for transparency.”
And when asked if this also applied to interim measures, the judge added: “Why wouldn’t it? It is a public decision.”
The Daily Express confronted scores of judges over two days at the European Court of Human Rights in Strasbourg in a bid to understand the veil of secrecy over the court’s controversial decision to ground last Tuesday’s flight to Rwanda.
And the vast majority refused to speak about the decision.
Dover MP Natalie Elphicke added: “How can a court that issues secret judgments by secret judges be in line with our country’s values?
“Any proper court needs to say who the judge is and explain why in a written judgement.
“The European Court’s secretive behaviour is an utter disgrace given the seriousness of the dangerous Channel crossings.
“It underlines why the Government is absolutely right to bring forward a new British Bill of Rights”.
Conservative MP Robert Halfon said: “You should be able to find out who the judge was in less than five seconds.
“Not only did this judgment go against the UK Parliament, but it is also unaccountable and not transparent.
“The British public voted to leave the European Union so that Britain could make its own laws and decide what is best for Britain.
“What is the point of leaving the EU if a foreign court which is not accountable is able to override what the British parliament says?”
Alp Mehmet, Chair of Migration Watch, said: “All courts should be there to see that justice is done.
“If we don’t know how decisions have been reached, how can we be confident justice has indeed been reached?
“If the ECHR prevents us from having the immigration policy we think is right for the UK, then we have to consider leaving it.
“Everything that has happened over the last few weeks points to that direction.
“It is not the appropriate mechanism for handling immigration cases.
“The ECHR construct was put in place for different issues, for different times.
“The World has moved on.”
Tory MP Andrew Bridgen added: “The fact that the judge who passed the judgment won’t put his or her name to it tells us all we need to know.
“We need to reform the human rights framework to restore public confidence in it.”
Icelandic judge Robert Spano, the President of the ECHR since May 2020, dismissed numerous attempts by this newspaper to find answers over the court’s secretive decision.
He said the court has a policy to indicate on the website which judges are allowed to handle interim measures.
But Mr Spano said the ECHR will protect the individual judge who made the Rwanda flight decision’s name – citing confidentiality.
And the 49-year-old claimed it was inappropriate for him to answer questions about the work of the court “through bars” – referring to the security fences around the court and instead tried to deflect the Daily Express to the court’s communications department.
Slovenian Marko Bosnjak – Section 1 President – said we should contact “the court’s press services” and threatened to then call “the court’s other services.”
A host of other judges claimed they “cannot” or “will not” speak about the case or the identity of the judge involved.
Only three judges are listed on the website as being responsible for handling interim measures.
These are Liechtenstein’s Carlo Ranzoni, who has sat on the council since 2015 after years in criminal law, Hungarian judge Peter Paczolay, who was appointed in April 2017 and British representative Tim Eicke.
But ECHR rules state that judges are barred from hearings being brought against his or her own country – meaning Mr Eicke was not allowed to consider the case of an Iraqi national known only as K.N.
In his ruling, the anonymous judge said: “The court had regard to the concerns identified in the material before it, in particular by the UN High Commissioner for Refugees (UNHCR) that asylum-seekers transferred from the United Kingdom to Rwanda will not have access to fair and efficient procedures for the determination of refugee status.
“As well as the finding by the High Court that the question whether the decision to treat Rwanda as a safe third country was irrational or based on insufficient enquiry gave rise to ‘serious triable issues’.”
Another judge, when asked whether the lack of transparency was appropriate, said: “It isn’t for me to judge”.
The courthouse itself is surrounded by steel fences, with security checkpoints around 100 metres from the front door of the building.
Visitors are allowed by appointment only.
Home Secretary Priti Patel has said the European Court of Human Rights behaved “scandalously” by blocking the flight, adding: “The opaque way this court has operated is absolutely scandalous.”
“That needs to be questioned.
“We don’t know who the judges are, we don’t know who the panel are, we haven’t actually had a judgment — just a press release and a letter saying we can’t move this person under rule 39. They’ve not used this ruling previously, which does make you question the motivation and the lack of transparency.”
Ms Patel questioned whether the court’s decision was motivated by anti-Brexit sentiment. “You’ve got to look at the motivation. How and why did they make that decision? Was it politically motivated? I’m of the view that it is, absolutely.”
Despite the ECHR ruling, the Government is intending to continue with its Rwanda migrants flight policy.
The ECHR block could be overturned by ministers under new proposals.
The plan, being introduced to Parliament, would allow ministers to ignore the court’s injunctions.
It is an addition to planned changes to the Human Rights Act, and could also affect future cases involving migrants.
The two judges:
A former head of the Office of Hungary’s President, Mr Paczolay was also a senior legal advisor to the Constitutional Court of Hungary.
He became the President of the Constitutional Court of Hungary in 2008 and led the institution until 2015.
The 66-year-old is also given a say on whether judges are suitable to sit on the Court of Justice.
He was appointed to the ECHR in 2017.
A criminal law specialist, Mr Ranzoni was appointed to the court in 2015.
Originally from Switzerland, the 56-year-old has been a member of the Swiss Association of Criminal Law since 2004.
He was also Liechtenstein’s representative at the Council of Europe Committees of experts on the protection of children against sexual exploitation and abuse and on combating violence against women and girls.
He also represented the principality by making reports to the UN Committee on the Rights of the Child and at the European Committee on Crime Problems.
How the court works
Cases can only be brought to the European Court of Human Rights once all domestic courts have been consulted.
So in the UK, it can only hear cases once the Supreme Court has made a ruling.
Applicants only have four months from the final domestic decision-making process.
Complaints must be based on the European Convention on Human Rights and the applicant must have suffered from “significant disadvantage”.
A judge will then assess the case and decide whether there has been a breach of human rights that has been missed.
If they conclude there has, the case will be reviewed again.
Once this is accepted, it will be referred to the Grand Chamber.
This body will then inform the country accused of breaking the law what their punishment will be, for example, the paying of compensation, changes in laws or the reopening of a court case domestically.
The Committee of Ministers will then analyse whether the court’s ruling has been carried out.
If it has, the case is officially closed.
There are 46 judges in total – each one nominated by a different country in Europe.
The judges are elected by the Parliamentary Assembly of the Council of Europe from lists of three candidates proposed by each State. They are elected for a non-renewable term of nine years.
Although judges are elected in respect of a State, they hear cases as individuals and do not represent that State.
According to the ECHR, Interim measures are urgent orders that “apply only where there is an imminent risk of irreparable harm”.
Such measures are decided in connection with proceedings before the Court without prejudging any subsequent decisions on the admissibility or merits of the case in question.
In the majority of cases, the applicant requests the suspension of an expulsion or an extradition.
The ECHR has never published the names of the judges who give these orders.
Lawyers for the applicants told the High Court that the main reason they should not be deported to Rwanda is that they would not be given a fair trial.
This is considered a “more exceptional” use of interim measures, according to the ECHR.
It is typically used for people who fear they will be killed if they are deported.
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