Speeches and Op-eds
Communication on the occasion of the first part of the 2016 Parliamentary Assembly Session
The Convention is our compass
I’d like to use this opportunity to talk to you about our Convention system, because I believe that it is one of the best tools we have to deal with the many crises Europe is now facing; And because I believe it is coming under threat.
The European Convention on Human Rights has boosted freedom, democracy and the rule of law in each of our countries. Many of these – often silent – successes have in fact been compiled into the excellent recent report by Mr Pierre-Yves Le Borgn on the impact of the Convention – which I encourage you all to read. And the Convention is our compass. It provides a clear, legal guide on so many of the dilemmas we now face.
What – for example – are the basic standards any newcomers to our societies should expect? And what, in turn, are the standards we expect them to uphold? Many people are asking these questions, particularly following the awful events in Cologne.
It is important to say that we still do not know exactly what happened at Cologne’s central station on New Year’s Eve, nor who exactly was responsible, and we should avoid sweeping generalisations which pander to the far right. But I very much welcome your decision to hold a current affairs debate on this issue. There are legitimate questions to be asked about how we reconcile different cultures and mindsets in modern and diverse European societie, and we must be clear that there is one set of values which everyone must respect. They are right there, in black and white, in the Convention. One set of liberties all in Europe must enjoy – no ifs, no buts, no cultural relativism.
In the context of violence against women, these rights have been translated into the Istanbul Convention – which outlaws all types of gender-based violence. And, by the way, I think it will send a very reassuring signal if Germany now ratifies ‘Istanbul’, having signed it nearly five years ago.
The Convention guides us on counter-terrorism, too. How can we empower our security services to prevent attacks without eroding civil liberties? When does freedom of expression become incitement to violence? These are extremely sensitive issues, but the lines have been drawn in the case law of the European Court of Human Rights.
And our Convention is a shared vocabulary: a basis for co-operation, even when relations are fraught. Take, for example, the controversy surrounding legislative changes in Poland, which some fear will undermine the effectiveness of the Constitutional Court.
I urged the Polish Government to ask for an opinion from our Venice Commission, which they have done, and I have established a dialogue with the Government. Contact persons in the Ministry of Foreign Affairs and my Private Office will be appointed.
The European Commission has also launched a formal review into whether the Constitutional law violates the rule of law and this has prompted a row between Warsaw and Brussels. I know that both sides are keen to diffuse any tensions – and I welcome that – and both recognise that our Venice Commission is a world authority on these matters and are keen to hear its view.
The Venice Commission will provide a factual, legal analysis, based on common standards, on which everyone should be able to agree. This situation therefore reminds us that, so often, the law can resolve differences and move us forward in a way which politics cannot.
The Convention under threat
Yet, despite all of this, despite our many reforms to improve our Convention system over recent years, it faces a growing political threat.
There have always been those who challenge the authority of international institutions, but these forces have slipped into the mainstream – and they are gaining traction. When we join the dots, the danger to our Convention system begins to feel very real indeed.
In the UK, we have the ongoing debate over the Court’s judgment on prisoner voting. I appreciate the Government entering into an enhanced dialogue with us, to find a way forward. I also understand that some judgments take time to implement.
But many are watching the UK, and I am very concerned by the argument – which I hear more and more – that Parliament’s previous rejection of a change to the law must, automatically, be the final word.
In the Russian Federation, according to a new law, if the authorities believe that there is a conflict between Russia’s constitution and a judgment of an international court they will be able to request an opinion of the Constitutional Court to determine the compatibility. This raises the possibility of the Constitutional Court declaring that a judgment from our own Court, the European Court of Human Rights, cannot be applied in Russia.
It remains to be seen what will happen, if and when such a conflict arises and it will now be up to the Constitutional Court to ensure respect for the Convention, if it is called upon to act under the new provisions, but it would be far better if this uncertainty had not arisen at all.
In Switzerland, there are now enough signatures on a petition to trigger a referendum on the role of international treaties versus national laws.
In Norway, the Parliament has recently adopted a resolution which says that international conventions have to be adapted to so-called "new realities", referring to the refugee crisis, as though treaties like the Geneva Convention on refugees and the European Convention on Human Rights were written for sunny days, when, in fact, they were designed precisely to protect individual rights in difficult times like these.
And we see a number of instances of states deliberately flouting their obligations. The one I would like to highlight is the ongoing detention of the well-known intellectual and activist, Ilgar Mammadov, in Azerbaijan. Mr Mammadov has been in prison for two years, where there are strong indications that he has faced threats and ill-treatment.
He is not the only person in Europe who is locked up when they shouldn’t be. But he is the only person who remains behind bars in spite of the fact that the Strasbourg Court, the highest legal authority on the continent, relying on the rarely used Article 18, concluded that the courts and prosecution had abused their power to engage proceedings against him. In other words, politically motivated evidence was used against him.
In the few other cases where the Strasbourg Court concluded a violation of Article 18, the applicants were either rapidly released, acquitted or their conviction was annulled. In this case nothing has been done. The Azerbaijani authorities have resisted repeated calls from myself, this Assembly and the Human Rights Commissioner to free Ilgar Mammadov. In such a situation I am entitled to take extraordinary measures, according to Article 52 of the Convention, which I am invoking, for the first time since I became Secretary General, in order to send a special mission directly into the country to pursue Mr Mammadov’s release. Again: we cannot have people in prison on the European continent, whom our highest court has said are there on false ground. This is the bottom line.
These various developments, taken together, are cause for real concern. The Convention system – for which all 47 member states share responsibility – hinges on Article 46, which says that the contracting parties shall undertake to abide by the rulings of the Court. When individual states ignore their obligations, or when there are attempts to pick and choose which rules should be followed and which should not, it pulls at the very fabric of the Convention, and if it begins to unravel, it will be very difficult to stop.
Having experienced – particularly in Europe – the worst excesses of unrestrained state power, our nations have agreed to a set of shared legal constraints because it makes all of us stronger and safer overall. This logic still prevails. So my message today is a call for urgency and leadership. The Parliamentary Assembly needs no lectures in asserting itself. I am extremely grateful for the strong and principled positions you regularly take. But today I speak to you as individual parliamentarians, too. I ask you to go home and be louder than ever in defending Europe’s human rights architecture.
Priorities in the year ahead
I have taken the same message to the Committee of Ministers and, for my part, I will continue leading the Council of Europe down the reform path so that there can be no doubt about the difference we make.
In Ukraine, we will continue to work with Kyiv on renewing the country’s constitution and decentralising power. There are many in this crisis thinking – rightly – about the ceasefire and the Minsk agreements. The difficulties are many, but one thing is clear: the parties can only succeed in finding common ground if it is built on the standards both have signed up to.
Another thing which is clear: all people living in Ukraine and Russia are under the protection of the Convention and the Council of Europe has an obligation to do what is possible in this respect, regardless of the disagreements that exist, including on the status on Crimea. Our position on Crimea’s territorial status has been made clear by the Committee of Ministers and this Assembly. This must not, however, prevent us from monitoring how the basic Articles in the Convention are being upheld.
No delegation from an international organisation has visited Crimea for more than a year. I have managed to reach an agreement in order to send a human rights mission to the peninsula. I have appointed Gérard Stoudmann, an experienced Swiss diplomat, to head the mission – and I can confirm that he is in Crimea right now. This should not be seen as recognition of the de facto authorities there. It is, rather, recognition of the fact that we, as guardians of individual liberty, have a special responsibility to seek to protect the freedoms of the two and half million people living in Crimea. Once the mission reports back to me, I will take its findings to the Committee of Ministers. At that stage, we can decide what more must be done to uphold these people’s human rights.
On the refugee crisis, in this complex situation, we have a simple job: standing up for the basic rights that must be enjoyed by any person on European soil. PACE has been exemplary here, as has the Commissioner, and I have appointed a Special Representative, Mr Tomáš BOČEK who will focus on developments on the ground, looking at new legislation and intervening when necessary, offering assistance based on our standards and the case law of the Court. Tomas and I will be saying more about his role later this afternoon.
On the fight against violent extremism, last year we negotiated our ground-breaking treaty on foreign terrorist fighters. This year we will take action on a range of new initiatives including to better target terrorists acting alone, outside of traditional cell structures, to prevent radicalisation in prisons, and we will launch a brand new set of competences for Europe’s schools to help young people learn to live together successfully, as democratic citizens, in diverse societies.
Judicial independence will remain front and centre of our work. This is a priority for me and will feature once again in my annual report, which will look, again, at the democratic foundations of European stability – our ‘democratic security’. Weaknesses persist across the continent, undermining trust in state institutions, and thereby threatening our stability. So we will adopt, in the spring, a pan-European Action Plan, to boost the independence and impartiality of Europe’s courts.
And, over the coming year, I want us to assert ourselves even more strongly as a champion for media freedom. If you have not yet seen our Platform for the safety of journalists – take a look. There is no other tool like it: an online platform which allows journalists to sound the alarm and which publishes responses direct from the governments.
The state with the most alerts is Turkey where the situation for freedom of expression is deteriorating. I have always condemned terrorists who seek to hurt Turkey. Last week a bomb went off in a school in the South East of the country, hurting five children who were collecting their report cards. No state should have to endure such cowardly attacks.
But it is also in every state’s interest to respond to terrorism in ways which uphold our values and the rule of law – because this is what differentiates us from terrorists. And it is in every state’s interest to make space for dissent and difference – because this is the lifeblood of healthy democracy.
We have now secured agreement from the government that there will be a review of the most problematic laws and practices, which the Minister for Foreign Affairs confirmed to me in a meeting this morning. I hope that the authorities will work with us in a way which shows the world that human rights in Turkey are not in permanent reverse.
On all of this, I hope that we can continue to work together. For all of Europe’s troubles, we still have the most sophisticated system of international co-operation anywhere on the planet. We have the rule of law, at European level, grounded in values which all of our citizens hold dear. As the guardian of the Convention, it is my job to defend it; to apply it in a strict manner, where I am not swayed by political arguments, but stick to the law and the judgments of the Court. It is a system which has served Europe well for 65 years, which protects the individual liberty of 820 million people, and it is why many across the world look to us with admiration and hope.