Colloquy: “Towards stronger implementation of the European Convention on Human Rights at national level”

Speech by Terry Davis, Secretary General of the Council of Europe

Stockholm, 9 June

A few weeks ago, Bernard Kouchner, the Foreign Minister of France, was in Strasbourg to inaugurate a new building of the Council of Europe. At a ceremony which took place across the street from the European Court of Human Rights, he made a statement to which I fully subscribe, he said and I quote “In its noble task of protecting human rights and fundamental freedoms, the Court is not, alas, as is often said, the victim of its own success. It is rather the victim of the failures and bad habits of our member states. We all know that the improvement of domestic remedies is part of the solution. We also know that the full and effective execution of Court judgments, of which each State party has accepted the binding effect, without derogation, will contribute to resolving the problem of overburdening with which the Court is confronted.”

With 80 000 outstanding applications in Strasbourg, one might ask why we are here talking about national measures? The answer, of course, lies in the term “subsidiarity”. The Convention system is first and foremost about protection at national level. The Strasbourg Court is only intended – indeed, its jurisdiction only allows it – to intervene after domestic remedies have been exhausted.

In a perfect world, there would be no violations of human rights, or at least none without remedy at national level. To have so many outstanding applications in Strasbourg – even if 90% of them turn out to be inadmissible – suggests that perfection, whether or not attainable, is certainly a very, very long way away.

I must then make the point that although the roles of national courts and the European Court of Human Rights are extremely important, this does not mean that the Council of Europe is only about Courts. We also try to help member states to reinforce their national systems, through standard-setting, advice, co-operation and monitoring. If widespread or chronic problems persist in member states and floods of cases continue to flow into Strasbourg, calls to increase the budget of the Court will continue. As I said in San Marino two years ago, our zero-growth budget means that our other activities must then be cut – including, sooner or later, those activities which could help to improve the situation in member states and thus reduce the flow of cases. And if this leads to yet further increases in the Court’s share of the budget, well… they call that a vicious circle. In the long term it makes no sense to take money from the fire prevention team to pay for the fire brigade. I would even go so far as to say that member states have an implicit duty and responsibility to ensure that the Council of Europe as a whole is able to promote and support the implementation of the Convention at national level.

It is certainly the case that, by increasingly focusing our activities and resources on human rights, we are doing more and more to help member states to meet their responsibilities under the Convention.

Much of the reflection and standard-setting work is done by the Steering Committee for Human Rights – CDDH – and its subordinate bodies. These bodies have been very active – they drafted most of the instruments contained in the Reform Package of the 2004 Declaration; and since then they have been engaged in follow-up to implementation of the five main Recommendations. The examples of good practice identified should be studied carefully by member states in order to make progress in the relevant areas. For example, in most of our member states, criminal proceedings can now be reopened, after a Court judgment, either at the request of the applicant or at that of either the public prosecutor or some other public authority.

The Council of Europe also assists its member states in implementing higher standards of human rights through our programmes of targeted co-operation activities. These programmes complement standard setting and monitoring by translating their results into practice. Of course, successful implementation depends on the co-operation of the national partners, and I am pleased to say that in most cases this works very well. However, human rights assistance programmes can only have a long-term impact if member states are fully committed to ensuring that the results are maintained – indeed, commitment and co operation should be seen as part of the responsibilities of member states under the Convention.

In other words, strengthening the national capacity to implement the Convention is a task for the member states themselves, with support from the Council of Europe, and not the other way around

The Wise Persons report envisaged the Commissioner for Human Rights as having an increasingly important role in connection with the Convention system. One suggestion was to enhance his function as an “early-warning” mechanism for acute or systemic problems. In some respects this is already happening through his innovative, growing co-operation with Ombudsmen and national human rights institutions, which has included detailed work on the implementation of some of the Reform Package recommendations.

Other ideas for his role – some well-received, others less so – have been suggested, and as the budget and resources of his office continue to increase, I hope that he will be able to respond to the best of them.

Moving on from standard-setting and support for implementation, we come to monitoring activities.

The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly is currently reporting on the effectiveness of the Convention at national level. Its composition of members from the national parliaments of all member states make it an important partner in our activities – sometimes critical, but always constructive.

Other bodies which are not represented at this colloquy are also playing an important part. I would mention here the European Commission for Democracy through Law - the Venice Commission - and the European Commission for the Efficiency of Justice. Both have worked on improving domestic remedies, in particular the excessive length of judicial proceedings, an especially important issue in terms of the number of applications which arise from these delays.

And, of course, the Court itself helps member states to improve their domestic protection of human rights, by revealing deficiencies and, increasingly, providing guidance for solutions. For example, much more can be done to increase the impact of the case-law like advice which comes straight from the horse’s mouth, if President Costa will forgive the expression. It has been said many times before, but it is a fact that systematic, targeted dissemination of the case-law, translated into ever more languages, for the benefit of national judges, lawyers and civil servants would be very useful. It is for member states to choose the best method, whether full judgments, extracts of judgments or summaries of judgments. But until then, problems which the Court has already sought to remedy continue to generate new applications to Strasbourg, through simple, but avoidable, ignorance on the part of those concerned.

Speaking of the Court, of course, brings me to a related issue which I will mention even if this Colloquy will not consider it in depth.

I refer to the execution of judgments, the down-stream counter-part to the otherwise up-stream process of judgments. Full execution of each judgment, including any general measures, can go a long way to ensuring that similar or related cases do not subsequently find their way to Strasbourg. Even where it has not been possible, prior to the Strasbourg judgment, to remedy a violation domestically, it should always be possible to learn the lessons of a judgment and ensure that an effective remedy is found for such violations in future. “Clone” or repetitive cases are a major component of the burden on the Court, and it is a burden which can and should be lifted by the member state concerned.

I hope that this Colloquy will live up to its title and, ultimately, lead to more effective implementation of the Convention at national level. The Council of Europe is ready to take up new ideas which I am sure will emerge. Drawing on the programme of the Colloquy – and without wishing either to influence your discussions or to present an exhaustive list – I would suggest that you might consider some of the following questions.

First, domestic remedies, in particular the idea – mentioned briefly at the San Marino seminar – of a new legal instrument, binding or otherwise. The Steering Committee on Human Rights, the CDDH, has already had a first look at this issue and found it to be interesting enough to recommend further work. What would be the purpose of such an instrument? If one is needed, should it be binding? If so, should it have a monitoring or control mechanism? Are the existing standards – in particular those based on Article 13 and the case-law of the Court, along with the Recommendation of 2004 – sufficiently clear so that they can be brought together in a comprehensive legal instrument? Or are they –with the existing 2004 Recommendation – sufficient by themselves?

Second, without doubt more can be done to ensure the compatibility of domestic legislation with Convention standards in order to avoid the creation of avoidable, systemic problems. We should look into what are the roles of the various national authorities – not only the legislature – in doing so, and what can the Council of Europe do to support them?

Third, we must improve execution of judgments, both the judgments of the Strasbourg court and national judgments. Judicial systems are pointless if their decisions are not given full and prompt effect. Much has been done to improve the supervision of execution of judgments by the Committee of Ministers and further work is underway. This Seminar is an opportunity to hear your views and proposals, including your ideas about possible improvements at national level.

Fourth, we should make sure that everyone in our member states should know about the possibilities which the Convention system offers to protect their rights and thereby resolve their problems. including by application to the Court. Of course, we do not want to encourage even more applications which do not have any merit, but a well designed system of information and advice should both deter some of the hopeless applications and improve the quality of those which do merit consideration. Who should provide this information and advice? Is there a role for the Council of Europe or for the Court, which currently has a pilot scheme providing advice through the Council of Europe Information Office in Warsaw?

Fifth, we should look at the possibility of professional training in Convention standards. Again, this was the subject of one of the Recommendations, going hand-in-hand with dissemination of the case-law of the Court, which I mentioned earlier. Without doubt, more can and should be done: when judges and lawyers are better aware of the Convention, then domestic court proceedings and judicial decisions should be less likely to generate applications to Strasbourg. I would like to hear your opinion about what member states can do to improve the situation, and how the Council of Europe can help.

One form of help, of course, is the “HELP” Programme or, to give its full title, the European Programme of Human Rights Education for Legal Professionals, which assists member states in training judges and prosecutors with reference to the Convention. This programme has produced all the necessary tools and materials, making them available online, free of charge, in many different languages, using the latest interactive methods. Member states really should make the fullest possible use of this important resource.

Regrettably, the HELP programme is only guaranteed funding until the end of this year. That is why I invite member states to make the financial commitments necessary to ensure its continued existence – by doing so, you will in effect be investing both in your own judicial systems and in the proper functioning of the European Court.

And finally, we need a clear and comprehensive vision of the pilot judgment procedure of the Court, with sufficient detail to indicate the type of cases it could cover , the way it will operate and the results it is intended to achieve? What are the respective roles of the Court, respondent States and the Committee of Ministers? How do we protect the interests of applicants, which must come first – they are, after all, the raison d’être of the Court?

And – I don’t want you to be limited in your thinking – anything else your collective experience, wisdom and creativity may generate over the next two days is welcome.

With these, I hope, encouraging words, I thank you all for your attention and your participation on this Colloquy, and I look forward to the debate and its outcome.