Tom Zwart: How David Cameron could resolve his argument with the ECHR over votes for prisoners

Tom Zwart is a professor of human rights at the School of Law of Utrecht University and a board member of the Telders Foundation, a Dutch think-tank devoted to liberty, democracy and the Rule of Law.

The fact that, as a result of its judgment on the right to vote for prisoners, the European Court of Human Rights has clashed with public opinion in Britain and political sentiment in Westminster is hardly surprising. The judges used to live in their countries of origin, while meeting each other only periodically to discuss the cases. Now they are all permanently based in Strasbourg, which makes it difficult for them to keep in touch with reality on the ground. They have exchanged the occasional chat with the grocer on the corner for conversations with human rights interest groups and academics, which tend to uncritically accept their judgments.  

Consequently, the Court has felt encouraged to add rights to the European Convention on Human Rights which clearly are not there - like the right to be protected against environmental pollution. Recently, in a case on the presence of crucifixes in Italian class rooms, the Court read a right not to be exposed to such religious symbols in a provision that allows parents to have their children educated in accordance with their own religious beliefs.

The Court has also relaxed its rules of evidence in a remarkable manner. In a recent case, an asylum seeker claimed to have been submitted to inhuman and degrading treatment in Greece. The Court admitted that the applicant had failed to substantiate his allegations with proof. It nevertheless accepted them as being true, because reports of the High Commissioner for Refugees and organisations like Amnesty International indicated that the treatment of asylum seekers in Greece was poor. But these reports were of a very general nature and they did not contain any evidence related to the individual case of the applicant. This outcome is the more striking since the Court does not allow national courts and juries to rely on hearsay evidence.