European Convention on Human Rights at 70: Current challenges 

19 October 2020, MGIMO University (Moscow)

Ladies and Gentlemen,

Dear colleagues,

I must confess that face-to face meetings become a special privilege nowadays. We are all the more delighted to be in Moscow today.

With due respect for all sanitary restrictions, we could not miss this important annual venue which has become not only a good tradition but also an important channel of communication and interaction with our Russian partners.

I would like at the outset to congratulate the co-organisers of this event, the European Studies Institute, for their courage to host us today. It was not only the right moment, but perhaps, the only moment, to meet in person before international flights are suspended again. What I say does not sound very optimistic, but this is unfortunately the reality.

Our Secretary General has just outlined a wide agenda of the Council of Europe. I will focus on the system of the European Convention on Human Rights.

I believe we are facing an important milestone in the Convention’s history. Not only shall we mark its 70th anniversary in a couple of weeks; we are also about to turn an important page of this history, known as “Interlaken process”. Indeed, the decade of reform that began with the Interlaken conference in 2010 is now over.

Before turning to the challenges, let me emphasise what I consider as the Convention system’s major achievements. Indeed, the achievements and challenges are often inter-twined.

First and foremost, the strong focus on the legal aspects of individual fundamental rights made it possible, in the 70 years of the Convention history, to depoliticise some controversial political issues. The Convention system does not deal with abstract human-rights grievances but with concrete human rights complaints and aims at providing redress to victims of violations.

The Convention compels the Court to follow strict judicial rules in establishment of both the facts and the law. This brings any human rights issue to a legal field, irrespective of its possible political context and repercussions. The adherence to this paramount principle has earned the Convention recognition as a unique judicial human rights system; it has also secured the continued acceptance of the Court’s judgments by member States. We must preserve this achievement which is vital to the efficiency and credibility of the Convention system.

The second major achievement is the Convention’s role in shaping the European legal identity. It may appear an exaggeration, but one can hardly find since the Roman Empire, another body of law that has federated in a similar manner legal concepts and judicial practices across greater Europe.

This success is contingent on the Court’s ability to find common ground between different legal systems of our members States and to strike a fine balance between public and individual concerns.

While leaving member States a margin of appreciation in some areas, the Court adopted the strictest approach when it comes to protecting the very essence of fundamental rights, starting with the physical integrity of individuals. The balance between judicial activism and restraint is a paradigm that goes throughout the Convention’s history.

The third major achievement, and I will limit myself to these three, is the Convention system’s tremendous judicial output that produced a tangible daily impact in all our 47 member States and far beyond.

The Secretary General has already given few striking figures that have no precedent in international adjudication. More than 1.5 million applicants have brought their cases to the Court, either individually or in groups. Around 100,000 applicants have had their complaints satisfied and remedied. The Court’s judgments have resulted in hundreds of structural reforms in respondent states, our member states. They have therefore benefited to millions of Europeans.

Most of you will remember that one of the first judgments in respect of Russia 20 years ago concerned the poor conditions and the excessive length of pre-trial detention. Hundreds of similar judgments followed. Admittedly, the underlying structural problem is not yet fully resolved. But the number of people in detention has decreased by a half from almost a million then to less than half a million today.

Is it not a bright result of Russia’s participation in the Convention system? And we can readily find examples of similar structural reforms in each country.

The Convention does not only produce its effects on legislation. National courts in Europe and beyond, including Russian courts, give effect to the Convention by quoting the Strasbourg Court on a daily basis.

Let me now turn to challenges the Convention system is facing.

The next decade will be crucial to ensure the Convention’s continued relevance and sustainability in an increasingly turbulent world. The Council of Europe is not the only organisation to face pressure from all sides. Multilateralism is challenged throughout the world, whereas it has proven to be a major safeguard for peace since the second World War. Our Secretary General has put this issue in the centre of her last annual report. I will not elaborate on this, but it is important to keep the general context in mind when we speak about the Convention system.

First challenge I would like to start with is a numerical one. The European Court of Human Rights continues to receive a very high number of applications. Far too many for an international court, I should add. Many people consider Strasbourg as a last hope. Hence, the high number of complaints from all 47 member states.

The Court has tremendously increased its productivity over the last decade, thus reducing the number of pending cases by almost three times and it continues to struggle to keep the backlog to the manageable level. My colleague Hasan Bakirci will tell you more about what has been done and what to expect.

The second challenge which is probably the most comprehensive one relates to the Convention’s authority and its effectiveness at the national level.

The Steering Committee for Human Rights of the Council of Europe summed up “the authority challenge” as follows:

The well-functioning of the Convention system is contingent on “the quality, cogency and coherence of the Court’s judgments and the ensuing acceptance thereof by all actors of the system, including governments, parliaments, national courts, applicants and the public at large”.^[1]

Hence, there are two elements that underpin the Court’s authority: the quality, cogency and coherence and its judgments, and their acceptance by all national actors. National courts are the key Convention actors as any human rights dispute goes first to them before reaching Strasbourg. That’s why the judicial dialogue is the core driving force of the Convention. The Court has set up a Superior Courts Network which is intended to support this dialogue. The Russian Supreme Court is member of this network.

That being said, there are many other actors of the Convention system at the national level with whom the continuous dialogue is necessary. Our event is part of this dialogue. It is no secret that some Strasbourg Court judgments are perceived as controversial.

Fortunately, it does not happen too often. Our common assessment with the Russian authorities is that some 98 % of judgments finding violations in respect of Russia do not raise any controversy with the Russian legal system. [I stand to be corrected by Mikhail Galperin.] This figure demonstrates the value of the Convention system and its overall positive impact on the Russian Federation.

Every year reforms are adopted by the Russian authorities in response to the Strasbourg judgments. For example, two reforms adopted earlier this year on the initiative of the Ministry of Justice concerning the compensation for detention conditions and the detention in remote colonies far from home will resolve thousands of cases at the national level.

Controversial issues may arise nonetheless, and Russia is confronted to some of them. How should the Convention system manage these controversial situations such as incomprehension based on unclear case-law or lack of political will or disagreement between domestic authorities?

Such situations require special attention. Numerous intricate cases against a variety of states have been resolved in a satisfactory manner through dialogue and interaction between the parties involved. We seize every occasion to discuss controversial issues with all national actors, including parliaments, governments, courts. That is why we were looking so much to this event and to bilateral meetings this week. Indeed, fluent communication between all Convention actors is the key to its continuous success. It is quite indispensable for the Convention organs as it is for our member states.

Ladies and Gentlemen,

I will not conclude without mentioning yet another challenge, a relatively new one, which has tremendously grown since few years last years and rightly attracts more attention in Strasbourg and European capitals. I am speaking of cases relating to open or frozen conflicts in Europe. [The Secretary General has just spoken about that too.]

May I recall that our unique judicial system is centred on individual rights. By its very nature, the Strasbourg Court is not a forum for political negotiation. Nor should the European Court of Human Rights be confused with the International Court of Justice. Strasbourg judgments must provide relief to individuals. They may therefore benefit to peace-making, but they cannot not replace the international political process and diplomacy.

Since the last three months the Court has received four new interstate cases in addition to several others already pending. The Council of Europe has a working group on the issue of interstate cases and the ways of dealing with them. One of the unresolved issues in the current negotiation on the European Union’s accession to the Convention also relates to possible interstate applications between 27 EU countries.

All in all, this brings about lots of issues relating to the place of the Convention in the international and European legal order. And this ensemble of issues constitutes perhaps the most serious political challenge the Convention system is facing.

One concluding remark: all challenges, including the toughest ones, lend themselves to be solved through dialogue and cooperation in good faith. This is what the Council of Europe was created for.

[As our Secretary General has just said in her interview outside this room,] the struggle for European unity and peace has never been easy. Council of Europe is, by its nature, in the centre of this struggle. The Russian Federation’s continuous participation in the unique Convention system is an integral part of this common endeavour.

Thank you !