A Court That Countries Have to Answer to

By Jay Walljasper, Ode. Posted August 26, 2006.

The plight of 5-year-old Tabitha Kaniki Mitunga sparked international controversy in 2002 when Belgian officials detained her alone at an immigration centre for two months. Tabitha was then deported back to the Democratic Republic of the Congo, where she found no family members waiting for her at the airport. Imagine how terrifying all this felt to a little girl hardly old enough to read.

This sad story began at the Brussels airport when immigration officers determined Tabitha did not possess the appropriate papers to enter Belgian territory. She was traveling from the Congo with her uncle, a Dutch citizen, who was looking after her until she could join her mother, who had moved from the Congo to Canada as a refugee. The uncle soon returned to the Netherlands. After news of Tabitha's detention and deportation spread, the Belgian and Canadian prime ministers finally intervened so the girl could be reunited with her mother in Montreal. But this happy ending doesn't wash away the cold facts of the case. How could a small child be treated that way? We can only throw up our hands, and bemoan the lack of compassion and common sense shown by bureaucrats rigidly following their rule books.

But Tabitha's mother did something more than that. Because the incident happened in Europe, Pulcherie Mubilanzila Mayeka was able to bring her daughter's grievance before the European Court of Human Rights (ECHR) -- a special judicial body upholding the European Convention on Human Rights, a 1950 treaty now signed by 46 nations.

On a sunny morning this winter, Mubilanzila Mayeka sat quietly beside her Belgian lawyer at the European Court of Human Rights headquarters in Strasbourg, France, as judges from Cyprus, Norway, Azerbaijan, Luxembourg, Croatia, Greece and Russia considered her case. Tabitha's family charged that Belgian officials violated Article 3 (prohibition of inhuman and degrading treatment), Article 5 (right to liberty and security), Article 8 (respect for private family life) and Article 13 (right to an effective remedy) of the European human-rights treaty. An attorney for the Belgian government wearing formal dark robes and accompanied by five colleagues nervously tried to explain why this case, although out of the ordinary, defied no sections of the treaty. Outside the courtroom, Tabitha -- in pigtails, white tights, and a bright new jumper -- bounced around the lobby with the energy that only an 8-year-old can muster.

Tabitha, her family and Belgian immigration authorities are now awaiting the court's decisions. So are government officials throughout Europe, who may need to revise their own regulations and practises in light of the court's findings in this case.

The European Court of Human Rights is like no other court in the world, starting with the building itself. While most courts aim to impress or even intimidate you with their dignity and decorum, the ECHR is brashly different. At first sight, it looks like a children's museum, with see-through walls and playful swirls of metal tubing painted bright red, blue and white. Glass is the court's overriding architectural theme; even the stairs are fashioned from thick blocks of it, obviously making a statement about transparency in legal proceedings.

Even more unique is the basic premise of the court: that individuals have the right to bring human-rights cases before these judges if they believe that justice has not been served in national courts -- even going so far as to challenge the rulings of their own governments. Equally startling is the way the court works: Judges from across Europe pass judgment on the actions or laws of a nation, and that nation must abide by their ruling. This seems astonishing in an era when the world's dominant power, the United States, acts as though it is not bound by any treaty or convention, and routinely defies judgments of international bodies.

The ECHR can actually set policy for all of Europe, as happened last year in the case of British environmental activists convicted of libel in UK courts for passing out a flyer at a McDonald's restaurant. Deciding the flyer's assertions that McDonald's exploits its workers and sells unhealthy food defamed the global fast-food chain, British courts ordered the activists to pay the corporation 40,000 pounds (59,000 euros; $70,000 U.S.) in damages.

After years of unsuccessfully contesting the decision in the British court system, the two activists brought their case to the European Court of Human Rights, which ruled in February 2005 that the McLibel case, as it came to be known, violated the European human-rights treaty's guarantees of freedom of expression and right to a fair trial. The British government was directed to pay the activists 57,000 pounds (84,000 euros; $100,000 U.S.) in compensation. But the impact of the ruling goes far beyond that. The ECHR's judges held that British libel laws restrict people's rights to criticize corporations. The UK government is now obliged to reform its laws, and so will any other of the 45 European nations with similar limits on free expression in their law books.

Jay Walljasper is the executive editor of Ode Magazine.

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