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Conference '70 years of the European Convention on Human Rights', on the occasion of International Human Rights Day

Berlin 9 December 2020
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Ministers,

Distinguished guests,

Ladies and gentlemen,

 

It is a pleasure to be here in Berlin and to be invited to discuss the current standing of the European Convention of Human Rights.

70 years after its opening for signature the Convention remains, along with the European Social Charter, the foundation of human rights law on our continent.

And its application is wider and more deeply rooted than at any previous point.

The theme of this year’s International Human Rights Day provides an illustration of this.

“Recover better” refers to the imperative of ensuring that the observance of human rights underpins our approach to dealing with the COVID-19 pandemic:

Something with which I concur and that I will address in my remarks.

But it is worth noting that when the European Convention was adopted in 1950, no-one was thinking about the role it might play in a public health crisis – much less this specific one.

So, this extraordinary treaty has reached into aspects of our lives which were previously unimaginable.

In doing so, it has done extraordinary good and I am grateful to the German authorities for organising this opportunity for us all to reflect and better understand that progress.

This morning I want to provide some perspective on the role that the Convention was designed to play;

I will explore the transformative impact that it has made – and continues to make in the current climate;

And I will address some of the future challenges, both in terms of new or evolving issues to which human rights standards should be applied.

It is important to be clear about the transformative nature of the European Convention.

The Statute of the Council of Europe speaks about the aim of achieving greater unity between its members.

And the preamble to the Convention states plainly that one of the methods for this is the further realisation of human rights.

Having endured two world wars, the rights of the individual would be protected against the arbitrary exercise of power by the state:

Conflict would be avoided by nurturing a common legal space, based on a shared culture,  ensuring peace, stability and security.

Today that common legal space comprises 47 member states, all of whom have ratified the Convention, and in which more than 830 million people live.

Ultimately, each of these has the individual right of petition to the European Court of Human Rights:

An international human rights court, which issues Convention-based judgments, to which every State Party has freely committed to abide.

The application of the treaty and the execution of the Court’s judgments are not optional.

Rather, they are legal obligations.

This approach was designed to depoliticise human rights, so that they should not be regarded as a matter for debate in the political arena but should instead be seen through the prism of the law.

As a consequence, human rights are at the centre of European justice in a way neither our continent nor any other has ever achieved before.

The rights to life, liberty and security, and privacy and a fair trial;

Freedom of expression, association and conscience and religion;

And freedom from torture, servitude and discrimination.

Today, these Convention-based rights sound very familiar to us.

Indeed, many people take them for granted.

But they should not.

Just seventy years ago, the language of these rights was new, and the reality of life in war-torn Europe bore little resemblance to the aspirations outlined in the Convention.

In many parts of the world this remains the case.

And given the voices we hear in parts of Europe, challenging the idea of human rights and the multilateralism on which the Convention system depends, can we really be confident that our human rights culture is self-sustaining?

In truth, ensuring fundamental rights requires governments’ ongoing commitment.

They must be dedicated to both strengthening multilateralism and a rule-based international order:

Both of which are welcome priorities of the current German Chairmanship of the Council of Europe’s Committee of Ministers.

Over the past seventy years, this has been the general approach adopted by the Organisation’s member states.

Because of this, we have witnessed the application of human rights across aspects of life in Europe, and to benefit of its citizens.

The Court has been central to this.

The legalisation of same-sex relationships;

The right of journalists not to disclose their sources;

The requirement for access to a lawyer from the very first interrogation in police custody.

Each of these have been confirmed in law – across our common legal area – by judgments issued in Strasbourg.

But these are of course just three examples.

Over the years, the Court has dealt with over one and a half million individual applications;

One hundred thousand applicants have had their complaints satisfied and remedied;

And, beyond this, national courts in Europe quote the European Court’s judgments and interpret the Convention’s provisions daily, while national authorities have adopted hundreds of structural reforms under the Committee of Ministers’ supervision.

Where there is a successful dialogue of judges between national courts and Strasbourg, it is also possible to pre-empt and resolve any tensions.

The German Constitutional Court in Karlsruhe has been particularly successful in this respect.

Responding to Strasbourg judgments, its judges were able to strike a balance between the national Basic Law and the Convention with regard to the practice of preventive detention - and on other issues, including the protection of the right to family life for fathers of children born outside marriage.

Central to all of this are the complementary principles of subsidiarity and shared responsibility.

These make clear that while the Council of Europe and the European Court of Human Rights have an important role to play, it is primarily for the high contracting parties to take responsibility for giving effect to the rights and freedoms defined in the Convention:

It is for States authorities to guarantee their protection and to remedy any violations, in line with a proper margin for appreciation.

Yes, the Court is there as a judicial safety net.

And yes, the Committee of Ministers oversees the execution of the Court’s judgments.

But for the system to function, implementation of the Convention must be comprehensive at the national level, including the full and fast execution of the Strasbourg Court’s judgments.

Thankfully, this largely remains the case.

Recent reports by both the Committee of Ministers and the Parliamentary Assembly point to positive progress, though there are still some shortcomings.

The application of human rights law is not however restricted to the interpretation of the Convention by national authorities or the Court.

Over the past seven decades, the Council of Europe has produced a total of 223 treaties and other legal instruments.

These apply the Convention’s terms to a spectrum of specific human rights challenges.

From data protection and cybercrime, to child sex abuse and violence against women, to the scourge of human trafficking and the protection of national minorities and minority languages.

Some of these treaties were necessary because our understanding of the issues has evolved and some because they address problems that did not even exist in 1950.

This is not about creating new rights.

Rather, it is about ensuring that existing rights are applied effectively to new and often very complex issues.

Both the case law of the Court and the Organisation’s development of new legal instruments are testament to the Convention’s role as a living instrument, to be interpreted in light of the ideas prevailing in democratic states.

Because of this our fundamental rights are not static or frozen in time:

They are evolving in line with our societies, and upholding our common standards in everyday life.

The current COVID-19 pandemic is a case in point.

In early April I provided member states with a document / toolkit designed help them respond in a way that upholds human rights, democracy and the rule of law.

This confirmed that the European Convention must be applied, including with regard to emergency measures and states of emergency - and that these must be necessary, proportionate and limited in duration.

Since then, there has been a wide variety of work across the Organisation to address the various human rights challenges caused by the coronavirus.

These have ranged from domestic violence to hate crime to the surveillance and data protection issues raised by the use of electronic tracing apps.

So, what we are seeing is the application of rights based in the European Convention to a situation that had not been imagined, concerning technology that had not been invented, and using legal tools that have not been envisaged.

Similarly, COVID-related cases have already been received by the Court - concerning the right to assembly, for example.

And I have no doubt that in the months ahead, all parts of the Council of Europe will need to respond to the evolving issues posed by this public health crisis, as will national authorities.

But while coronavirus has been terrible and unexpected, it is not the only new question to which European standards must be applied.

In this fast-changing world, we must keep pace with change and work with all our member states to protect their citizens’ rights.

And that is precisely what we are doing.

Let me give you some examples.

Artificial intelligence is playing an ever greater role in our personal and professional lives.

But algorithms can lead to discrimination and other human rights problems.

That’s why the Council of Europe is undertaking a range of activities on this subject, including work on the potential elements of a legal framework for the development, design and application of Artificial Intelligence.

Hate speech online is also a growing and deeply concerning phenomenon.

Earlier this year, the Court issued judgments confirming that this can result in human rights violations.

More than that, they affirmed that national authorities therefore have an obligation to act and to provide legal remedy.

And when it comes to the environment, there can be no doubt about the unprecedented strain that our ecosystems are under today.

Although the Council of Europe does not have an environmental focus per se, where conditions threaten people’s human rights – whether to life, property, or private or family life, for example - it is within our remit to act.

Because of this there is case law from the Court covering everything from airport noise levels, to industrial pollution, to town planning;

We have a number of environment-related conventions including our Landscape Convention, our Convention on the Conservation of European Wildlife and Natural Habitats, and our Convention on the Protection of Environment through Criminal Law.

And given the evolving challenges facing our environment and development of the Court’s case law, we now have an added impetus across our Organisation for further action.

As a result, a further, non-binding legal instrument is currently under development and intended for adoption next year.

So, 70 years on, the European Convention on Human Rights remains effective and dynamic.

Ensuring that this remains the case will rely upon the will of member states.

In recent years, the Interlaken process has resulted in a series of structural reforms to the Convention system, improving the Court’s working methods, and reducing its backlog of cases.

And I am pleased that this success was noted by governments at our Athens Ministerial Session last month.

Germany was of course among them.

Its authorities’ long-standing support for the Court is well-noted and evident, for example, in the continuous secondment of national judges to the European Court’s registry.

Ministers also made a welcome commitment to further strengthen and maintain the system in the years ahead.

This is absolutely necessary.

Ensuring the sustainability and long-term effectiveness of the Convention system will require the continuous engagement of member states at the national level, and of the Court and the Council of Europe as a whole.

There is also a need to further reinforce member states’ execution of the Court’s judgments, for which supervision is a prerogative of the Committee of Ministers.

Protracted execution, including in certain politically sensitive cases, is a source of concern.

We will need to look a further at our working methods  in order to improve this.

These include the Human Rights meetings of the Committee of Ministers’ Deputies that are devoted to this matter.

Any changes should aim to further enhance efficiency, effectiveness and tangible impact.

And I thank the German Chairmanship for its commitment to this.

Alongside this, the European Union’s accession to the Convention will be an important opportunity to complete the coherence of Europe’s human rights architecture.

Negotiations are underway and there is a determination on all sides that these will conclude in success.

Ladies and gentlemen, if the scope of this short speech has been rather wide, it is because there is so much to say.

In 70 years, the European Convention on Human Rights has had an enormous and ongoing impact on justice and life here in Germany and across our continent as a whole.

This must not stop.

Its ongoing application is a defining feature of the soul of modern Europe.

At this conference you will have the opportunity to discuss and consider it in depth.

That is a worthy investment and I wish you every success.