Farewell Speech at the European Court of Human Rights
President of the Committee of Ministers,
Ladies and gentlemen,
At the close of my ten years as Secretary General;
In the 60th anniversary year of this Court;
And in the 70th anniversary year of the Council of Europe, I can think of no better venue – and no better audience – for this address.
I would like to thank and pay tribute to all of you – in particular, the Presidents of this Court during my two terms.
Sir Nicolas Bratza
And the current President, Linos-Alexandre Sicilianos.
What did I bring with me when I arrived here ten years ago?
Well, a certain Nordic pragmatism which says that it is better to get things done than to discuss at length dogmas. If everything else fails, use common sense.
At the front of my mind was an awareness that, had it not been for democratic rights and rule of law, I would never have come here at all.
I was raised in a working-class family.
My parents could go to the polling station and vote for universal education, health care, and support for the elderly.
They could work and pay the taxes that finance all this. The welfare state.
And because they and others did, I went to school and to university.
Our rights were protected by law and independent courts.
And, during my younger days, The European Convention of Human Rights and The European Commission of Human Rights were a concrete reality too.
I remember that, after the military coup in Greece, I joined a campaign which grew quite big all over Scandinavia and the Netherlands.
Our primary demand was that our governments should file a state complaint against Greece at the European Commission of Human rights.
In the end, we succeeded.
The case confirmed multiple violations of the European Convention by the Greek dictatorship.
And the Council of Europe’s statute was applied by the Committee of Ministers on a recommendation by our Parliamentary Assembly.
Ultimately, this contributed a lot to reinforcing the democratic forces in Greece; democracy came back to Greece and Greece came back to the Organisation.
And it became clear to me that The Universal Declaration of Human Rights had been enforced on the ground in a real way.
The Universal Declaration had in principle done away with the unrestrained power of the nation state.
But it was not equipped with monitoring bodies and a court.
When these were put in place here in Europe, the Universal Declaration became more than a declaration. It became law. We have the Court to enforce the law.
In my younger years I also read Victor Hugo’s book Les Misérables.
The prisoner Jean Valjean was released after 19 years for having stolen a loaf of bread.
When he left the prison his guard said, look at the letter of release, you will see this badge of shame until you die.
His life thereafter showed that every person has the possibility to become good or bad. It depends on the circumstances.
If laws provide rights, empower people and set standards for human behaviour, circumstances improve too.
As Martin Luther King Jr. said:
“Morality cannot be legislated, but behaviour can be regulated.
Judicial decrees may not change our hearts, but they can restrain the heartless”.
What more did I know about the European Convention and Council of Europe when I arrived here?
First of all, that the whole system rests on the individual right to petition the European Court of Human Rights.
I was well aware of the binding effect of the judgments of the Court.
And I knew that the Committee of Ministers, where all the 47 governments sit, has a collective responsibility for implementing the judgments.
But I was of course also aware of the big backlog and the problem of getting member states to implement judgments.
A few weeks into the job, I had learned a great deal more.
I understood that Protocol 14 of the Convention contained necessary reforms in the proceedings of the Court, but that it had not entered into force because the Russian Federation had failed to ratify it.
I looked at the statistics from the Court and found that 70% of the applications came from just 7 countries.
I also saw an organisation that was heavily centralised and had inherent bureaucratic tendencies. I have seen this in all bureaucracies I have worked: i.e. if a document could be understood, it is not yet finished.
I heard Jean Paul Costa often saying that, the Convention is a convention system, and that all the bodies of the Council of Europe are dependent on each other: if one body is weak, all the others are weak too.
And I discovered that relations with the European Union were dominated by mistrust and competition.
So based on these facts, I acted. Although I had heard what a former Norwegian parliamentarian said of the Council of Europe: there is a lot to do, but very little can be done. But I thought it was possible to do things.
First of all, to push forward the reform process in the Court.
The starting point had to be ratification of Protocol 14 by the Russian Federation and I immediately travelled to Moscow.
At the first Court Conference in Interlaken a few weeks later, the Russian Federation ratified.
I also travelled to Moscow a year later, right before Christmas, to obtain an agreement on establishing a Programme Office in Moscow.
On the way back our plane was delayed so we had to spend Christmas Eve in an airport hotel in Frankfurt.
Not very atmospheric - but worth it.
A series of conferences followed, in Izmir, Brighton, Brussels, Copenhagen and Helsinki.
Each of these has contributed to where we are now, and I would like to pay tribute to the Court and its Registrar for the resolute implementation of all the reforms coming out of these conferences.
The second thing we did was to address the issue of 70% of applications coming from 7 countries.
It was obvious to me that we needed to focus our resources where they were needed to help member states to reform their laws and practices, bringing them into line with the European Convention.
That way, fewer complaints would arrive at this Court.
This is about the important principle of shared responsibility.
The Convention must be implemented by national authorities: cases should come here only as a last resort.
So we started to decentralise our resources.
And we put in place strong offices in a number of countries.
Because of that, we have become valuable partners for other international organisations on the ground.
And the Council of Europe has become attractive to funding by others.
That funding has more than doubled to 60 million Euros per year, with the European Union as our single largest donor.
My very first mission - just before Moscow - was to Brussels.
I met with President Barroso and the partnership between our organisations has improved ever since.
I am very grateful to him and to President Juncker for their roles in that respect.
Back to Protocol 14.
Its entry into force streamlined the process of filtering out clearly inadmissible cases, with the introduction of a single-judge formation of the Court;
It introduced a new admissibility criterion: that the applicant must have suffered a significant disadvantage;
And proposed measures for dealing with repetitive cases.
A range of further measures has also born fruit including;
The ongoing testing of a non-contentious phase to facilitate friendly settlements;
And the more frequent use of the pilot judgment procedure to deal with large groups of identical cases;
Protocols 15 and 16 followed.
Protocol 16 has entered into force, allowing member states to request non-binding advisory opinions from the Grand Chamber of the Court, which France and Armenia have been the first to seek.
This and the rapid development of a Superior Court Network ensure close dialogue between courts and enable better implementation of the Convention.
Indeed, on Thursday and Friday of last week I was in Paris attending a conference of all the presidents of the supreme courts in Europe, organised by the French presidency of our Committee of Ministers.
And there I heard for myself how valuable this network is for enhancing the convergence of laws in Europe.
We should never forget that the European Convention and the case law from the Court are the primary means by which we foster greater unity in Europe - as set out in Article 1 of the statute - harmonising laws, and so bringing nations and people closer to one other.
It is a great peace project.
Because of the reforms we undertook, and a stronger emphasis on the principle of shared responsibility, the Convention has put down deeper roots, our member states benefit from enhanced dialogue on the implementation of the Convention, and the procedures of the Court have been streamlined and become more efficient.
As a result, the famous backlog of 150,000 cases has fallen to fewer than 60,000, and the number of cases closed by the Committee of Ministers has reached an all-time high.
I believe that the Court has also benefitted from my early decision to grant it administrative autonomy within the Council of Europe.
More can be done to secure the Convention system’s long-term efficiency – not least the entry into force of Protocol 15, which does more to entrench subsidiarity and includes a reference to the margin of appreciation.
But there remains a range of challenges facing the Court and the Council of Europe as a whole, and to which the Organisation must respond in the years to come.
Some of these are political.
A decade ago there were already sceptical voices using delays at the Court to undermine the Convention system.
There are significant forces that want to apply “the rule of my law” rather than rule of law.
These are prone to opposing multilateralism and questioning the legitimacy of the rules and institutions that support it.
The European Convention on Human Rights and the European Court of Human Rights are no exceptions.
Indeed, for some they are prime targets.
The Convention system draws fire precisely because it has become so important and so successful.
During my terms of office, I have seen attempts to use national parliaments and constitutions to prevent the implementation of the Strasbourg Court’s judgments.
Let me be clear, the European Convention on Human Rights is an international treaty.
Under the Vienna Convention on international treaties, state parties must implement such a convention in good faith.
This means that no member state can invoke its own Parliament or its constitution against a judgment of the European Court of Human Rights.
Well, it can - but it cannot at the same time continue as a party to the European Convention and a member of the Council of Europe.
This must be a bottom line – and it is.
It’s also important to bear in mind that the Convention contains rights that can never be derogated – under any circumstances.
If a member state wants to reinstate the death penalty or does not want to act when torture or forced labour are revealed, there can be no compromise from our side.
And we cannot have people in prison that this Court has said should be released.
I am therefore glad that the Committee of Ministers used its powers under the Convention to seek the release of Ilgar Mammadov.
A judgment from this Court made clear that his detention was flawed – yet he remained in prison for five years.
Ultimately, our Organisation took the action required.
This included my use of Article 52 of the Convention and – at my request – the Committee of Ministers’ first-ever deployment of Article 46.4.
I have no doubt that this played a major role in the eventual decision to end Mr Mammadov’s detention.
It sent a powerful signal to all member states.
There are a number of examples showing that the implementation of judgments takes a long time.
However, we cannot tolerate the existence of political prisoners in Europe, not for a single day.
When it comes to securing a person’s liberty, there can be no delay.
This would be an offence against the soul of Europe today.
Our Organisation should always have the capacity to be where it matters –
And to provide legal remedy to those who need it.
But this is not always the case.
The Council of Europe’s monitoring bodies and other institutions do not have access to all territories where there are unresolved conflicts.
And it is a growing problem, with 17% of cases pending before the Court now relating to these unresolved conflict areas.
This poses a challenge for the Court since it always looks at reports from our monitoring bodies when dealing with applications.
The Human Rights Commissioner has the right to intervene in Court processes, but she is prevented from doing so since she does not have access to these areas.
It is time for governments to make it clear that it is intolerable to have such grey zones in our human rights protection system.
The Council of Europe does not have a remit to address security issues that are being dealt with by the United Nations Security Council and the OSCE.
But we do have a responsibility to address the causes and consequences of human rights violations whenever and wherever they occur within territory covered by the Convention.
And it is clear to me that this should be a valuable and indispensable contribution to conflict resolution.
Look at the Good Friday Peace Accord in Northern Ireland.
A precondition for this was that the European Convention on Human Rights applies there – indeed, it is written into the text of the Agreement.
In the same way, a settlement of the conflict in eastern Ukraine cannot successfully and sustainably take place unless the European Convention on Human Rights effectively and entirely applies on all sides, on all territories and to everybody.
In Turkey, in order to overcome the current difficulties, the standards of the European Convention on Human Rights must be enforced.
Clearly, this also means that the use of violence and terrorism has no place in a political struggle on European soil.
We have seen that failure to implement judgments of the Court has led to a stalemate for the Dayton process in Bosnia and Herzegovina.
The European Court of Human Rights held in the case of Sejdić and Finci that those who do not belong to the three constituent peoples in the Dayton Agreement have the right to participate fully in the country’s political life.
I do believe that Bosnia Herzegovina cannot move forward before the Constitution is changed – and I hope that this will happen.
I also hope that the European Union will move to complete the circle of human rights protection for people within its own member states by ratifying the European Convention as soon as possible.
It has now been ten years since the Lisbon Treaty committed the EU to accession.
And I am grateful to President Juncker for his support, and for making a proposal to the European Council.
That said, I also believe that the process could have been completed by now, and I am disappointed that it has not.
Because in the absence of ratification, real problems emerge.
Today, it is not possible to hold the European Union to account in situations where it acts contrary to the terms of the European Convention.
Consequently, EU agencies are not subject to independent external judicial control.
Earlier this summer there were reports of alleged human rights violations that occurred during operations supported by the EU’s European Border and Coast Guard Agency, Frontex.
The Council of Europe – and our Committee for the Prevention of Torture – can provide the Agency with advice, and we are doing so in the framework of our excellent co-operation with Frontex.
However, this is no substitute for legal accountability.
Yes, Frontex is bound by EU laws that prohibit torture and any form of inhuman or degrading treatment or punishment.
But only accession to the European Convention will secure the independent external judicial control that is required.
Until the European Council ratifies the agreement reached between the Commission and our 47 member states, there will continue to be a grey zone in terms of Europe’s human rights provisions.
This summer’s European Commission Rule of Law communication contained many interesting and positive proposals.
It also signalled the Commission’s determination to increase the EU’s participation in the Council of Europe’s bodies;
And it described future accession to the European Convention as “a strong political signal to the Union’s commitment to the rule of law”.
I agree with those sentiments, and I hope that all of this will happen soon.
After 70 years, our Organisation has developed an extraordinary acquis.
Drawing from the rights outlined in the European Convention and the European Social Charter, we now have more than 220 legal instruments, setting common standards, and addressing specific challenges.
We have conventions to combat torture, cybercrime, violence against women, and the trafficking of human beings and organs.
And we have conventions to protect against child sexual exploitation, the misuse of personal data, the counterfeiting of medical products and the abuse of national minorities’ rights, supported by our European Charter for Regional or Minority Languages and our Framework Convention for the Protection of National Minorities.
We have also acted to support sports, culture and education with conventions to combat match-fixing and doping and to protect the safety of sports events and spectators;
A Cultural Convention and measures to make culture more accessible;
And education programmes that promote equality, inclusion and democratic citizenship.
These are just some examples of our work in areas of key concern and where the standards set here in Europe have often become a reference point for countries around the world.
So the Council of Europe should move forward with confidence.
And I must say that this has been made easier by the decision of our Parliamentary Assembly in June to clarify its procedures.
Our Statute is clear that all member states should have the same rights and obligations.
The June decision led to the return of the parliamentary delegation of the Russian Federation to the Parliamentary Assembly, and the authorities are now completing the payment of the contribution that they had previously withheld.
This is important not only for keeping our European family together, but also for reconciling the Assembly’s practice with our Statute.
The process we have gone through shows that many have their own perceptions of what the Council of Europe is and what is its mandate.
For many, their perception is coloured by where they stand in the unfortunately tense situation we now have in the international community.
So, they expect the Council of Europe to take their side and to make decisions and opinions that fit their wishes.
Similarly, the Court is put under pressure to work faster.
But we must stick closely to our mandate.
The Court is not a political commission: it is an independent institution based on the law and with its own procedures.
The process we have been through regarding the participation of the Russian delegation in our parliamentary Assembly also shows that we cannot have members that are half in, half out.
Unlike other international organisations, Council of Europe member states have strict judicial obligations under the control of a Court.
We expect them to honour their obligations, just as their rights must be honoured too.
This does not mean that membership is guaranteed regardless of the circumstances.
But suspension of a member state’s rights must be based on court judgements or a violation of the Statute as defined by the decision-making body, the Committee of Ministers, as we saw in the case of Greece, to which I referred earlier.
The European Convention is the legal expression of European humanism and it constitutes an important part of the European public order.
Underpinning that order is the European Court.
Judgments by the Strasbourg Court put the European Convention on Human Rights into practical effect;
With an impact that runs wide and deep, improving the daily lives of 830 million people across 47 member states.
A few examples.
Judgments by this Court have clarified:
The right to legal aid for those who cannot afford lawyers’ fees but who need to access a court;
The requirement to decriminalise homosexual relationships;
The equal rights of children born within and outside marriage;
The right to be assisted by a lawyer while detained in police custody;
The unlawfulness of arbitrary mass surveillance of our daily communications;
And the fact that forced labour is not defined by shackles, locked doors or other physical restraints:
Psychological restraints count too.
And potential victims have a right to protection by the state.
Looking back, it can seem astonishing that there was ever any doubt about these rights – that the Court had to act to protect them.
But it did, and it has. It shows the importance of this Court. Life in Europe is better for it.
Upholding all of this - and expanding it as our societies change - costs money.
I would like to put this in a very simple way.
Strong forces – including technology, financial circumstances, and social media – are changing our societies, day in, day out.
This consumes resources and requires them too.
If those tasked with upholding public order continue to face so-called zero nominal growth, which means no compensation for inflation, the balance of power will slowly change to the disadvantage of people across Europe.
We cannot continue like that. I would like to say this clearly. I hope it will change.
Returning to Victor Hugo, a story from one of our member states.
A man with a middle eastern appearance was seen at a demonstration holding something that looked like a weapon.
The police were alarmed.
They rushed into his house, interrogating him, asking why he brought a weapon onto the streets.
Then they saw on his wall a picture of a man who looked to them like a terrorist.
They asked to know if this was the leader of a terrorist cell.
The man replied that what he held was in fact a cucumber that he had bought at the market and that the man on the wall was not his leader but a man that he greatly admired – Victor Hugo.
At a time when extremism and hysteria can emerge quickly, and all around us, feeding from one another, it is important that there is a calming influence in the European House.
This influence is the European Court of Human Rights.
It has been an honour to do what I could to reinforce this Court and the Council of Europe.
And I do hope that the Convention will continue to bring nations and people closer to one other.
Rene Cassin expressed a similar sentiment when he received the Nobel Peace Prize in 1968.
“My country fills me with love that overflows its borders. The more French I am the more I feel a part of mankind.”
Let us hope that everybody here will always be able to say that the more Norwegian I am, or the more Russian I am, or the more Italian I am…
The more I feel part of mankind.
Thank you for all these years together.