In Which I’m Kind of Confused By Tyler Cowen’s Views on The European Court of Human Rights

Tyler Cowen calls the European Court of Human Rights “cowards” because of their recent Khodorkovsky decision. I am quite confused by this.

Am I missing some sort of satirical point about the media here? Because Cowen’s beef, apparently, is not that the Court’s decision was actually wrong, but that it was written in such a way that allowed newspaper headline writers to inaccurately describe it as a victory for the Kremlin:

“If you read through the actual story, you will see the court’s decision is in fact more nuanced than [the New York Times lede would indicate]. It was found that his human rights were violated in prison, that procedural violations were committed before the trial, and that he had not proved a political motivation to his prosecution, not that no such motivation was present. Nonetheless in such issues, it really is the headlines and opening sentences which matter. Imagine how this will play in Russia. The Court should have written an opinion so the headline would read “European Court of Human Rights condemns Russian tyranny and human rights abuses.” Instead we get “European Court Backs Kremlin in Khodorkovsky Case.”

He also finds it “an insult for the Court to call for the Russian government to pay Khodorkovsky a $35,000 fine,” because, “for a start, for two months he had only four square meters in his prison cell.”

Um, a few things. Firstly, it’s worth noting that the Court’s decision was, in fact, quite pro-Khodorkovsky. It found in his favor on nearly every claim. Although the Court rejected Khdorkovsky’s claim that the charges against him were politically motivated, this isn’t surprising. Claims of that nature are extremely hard to prove. (Courts are understandably reluctant to embrace a rule that would lead to impunity for criminals who happen to also be political opponents of their governments.) Notably, the court did condemn the suspicious nature of the charges: “The Court admits that the applicant’s case may raise a certain suspicion as to the real intent of the authorities, and that this state of suspicion might be sufficient for the domestic courts to refuse extradition, deny legal assistance, issue injunctions against the Russian Government, make pecuniary awards, etc.” This is hardly a “victory” for the Kremlin, partial or otherwise.

Secondly, the amount of the fine was determined by the amount that Khodorkovsky had requested (specifically, EUR 10,000 in non-monetary damages, EUR 14,543 in legal fees and costs, plus interest), not by the Court’s own valuation of the harm suffered. And as for the cell, the court condemned it as “cruel, inhuman, and degrading treatment,” which is, I assure you, quite a big deal in human-rights circles.

Finally, surely the sensationalist headlines are the fault of the dingbats who wrote them, not the Court? How is the ECHR supposed to head dumb journalism off at the pass? The New York Times rarely demonstrates a sophisticated understanding of international law, but frankly they came a lot closer to accuracy in this article than they usually do. Does Tyler actually think that the Court should write its opinions in the hope that the dude in the newsroom who plasters attention-grabbing headlines on stories written by other people will spin the story in the right direction? I really don’t think so. Seriously.

So yeah, I guess I’ll return to Plan A, “some sort of satire I’m missing here.” Because otherwise, I’m really not sure what Tyler thinks the ECHR does.

Amanda Taub

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