Ministers of Justice: European Human Rights System in the Future Europe
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Prime Minister, distinguished guests,
It is a pleasure to be here.
The Danish Government made clear from the outset of its Chairmanship that strengthening our Convention system would be a priority.
And I thank them for that.
I was equally clear from the beginning of my first mandate that strengthening that system – and the European Court of Human Rights – would be a priority for me.
The current reform process began at Interlaken, with milestones at Izmir, Brighton and Brussels.
It was agreed that the Committee of Ministers would take stock of our progress by the end of 2019 and decide how to move ahead.
And here in Copenhagen we have the opportunity to consider what has been achieved so far, and the challenges that remain.
Certainly, the progress to date has been impressive.
For example, when I took office the Strasbourg Court had a large and increasing backlog of cases.
But from a high water mark of 152,000 applications pending in 2011, that number receded to 56,000 last year.
This is because we took deliberate action.
Protocol 14 streamlined procedures.
And a constant and concerted effort to increase the efficiency of working methods has delivered.
The same can be said for cases pending before the Committee of Ministers:
Where the total number has fallen from 10,000 in 2016 to 7,500 in 2017.
Again, this is no accident.
Repetitive cases are now closed as soon as the individual applicants’ situations are resolved.
We took a series of initiatives to ensure better dialogue between the Committee of Ministers and national authorities.
And, consequently, member states too have done a lot.
Structural problems are being remedied in many countries – concerning, for example, prison conditions and the length of judicial proceedings.
Domestic capacities have been improved, and effective remedies put in place.
And new structures have been adopted by parliaments and governments to better monitor the implementation of the Court’s judgments against their own country.
So in the areas in which the Convention system has been most widely challenged – the efficiency of the Court and the execution of its judgments – progress has been made.
But there are areas in which further work must be done.
They have already been identified in the Steering Committee for Human Rights report on the Convention system’s future:
In particular, strengthening the authority of the Court, its judges, its case law.
But also preserving the Convention’s coherent and paramount place within European and international law.
Together, we must consolidate the authority of the Strasbourg Court and the Convention system as a whole.
This means working hard to ensure acceptance of the Court’s judgments – all judgments – by all Convention actors.
This is the backbone of our “shared responsibility”.
I have heard it said that the Court lacks the democratic legitimacy of national parliaments.
This is wrong-headed.
The separation of powers is part of the checks and balances found in healthy democracies.
Sometimes politicians will not like judgments handed down by a court.
But that is the nature of the legal process.
Those courts – our Court – are there to protect people against the arbitrary use of state power.
Politicians cannot set aside constitutional provisions by simple majority vote because they do not like them.
The same is true for human rights in Europe.
The Convention and the Court’s judgments are part of a collective guarantee set up by the member states under international law.
There are also those who claim that the Court can go too far in its interpretation of the Convention.
This too is wrong.
We have to keep in mind that the Convention is a living instrument which must be interpreted in the light of present day conditions and of the ideas prevailing in democratic States today.
This is fundamental.
As a consequence, for example, we have witnessed the decriminalisation of same sex relationships in Europe following the 1981 Dudgeon judgment.
Who among us would now argue against this?
And years after, in 2015, in Oliari and Others v. Italy, the Court recognised same-sex partnership taking into account a trend among member states towards the legal recognition of same-sex couples.
Of course our Organisation must continue to work closely with member states to ensure that we have a shared understanding of the law –
And how it can best be implemented.
Indeed, all Convention actors have a say in the interpretation of the Convention in response to modern challenges.
Together, we have already developed various tools for joint working, which should be used to their fullest.
These include judicial dialogue, which will be enhanced by Protocol 16, most recently ratified by France.
But also dialogue between the Strasbourg Court and other national authorities, with –
Observations and third party interventions –
Exchanges of view between the Court’s President and the Committee of Ministers –
And close contact between the Court Registry, the Department for the execution of judgments and domestic government agents and other authorities.
Similarly, our standard-setting activities facilitate meaningful dialogue with the high contracting parties.
And we must also strengthen co-operation with member states to help them implement the Strasbourg Court’s judgments.
Because the efficient execution of judgments remains central to the judiciary’s credibility.
So too is the authority of the judges who serve on its bench.
This means that lawyers of only the highest ability should be selected and elected as judges.
Overall, what more can be done –
While respecting the separation of powers –
With a fully independent European Court of Human Rights that maintains the right of individual petition?
In order to meet this challenge, the Court will need sufficient resources.
Equally, it will require the principle of shared responsibility to be upheld, with member states demonstrating the political will to implement the Convention.
Because the reality today is that the biggest problems are not in fact due to the Strasbourg Court per se.
Rather, they are because too often countries still have laws or practices that are not in line with the Convention.
Or they are too slow to implement judgments from the Strasbourg Court.
The Council of Europe will be supportive of further efforts to change this.
But primary responsibility for rectifying these issues rests at the national level.
This, after all, is what the principle of subsidiarity is about.
This has long been a source of consensus.
And on this subject I warmly welcome the most recent ratifications of Protocol 15 to the Convention.
I know that the four countries that have yet to sign or ratify will do their utmost to move quickly.
I also hope that progress will soon be made on the European Union’s accession.
This should help ward off the danger of fragmentation of human rights protection in the European and international legal space.
More broadly, that risk is being examined by the Committee of Experts on the System of the European Convention on Human Rights.
And I look forward to hearing its conclusions.
It is easy to take for granted what the Convention system has given to Europe in its near 70 year history –
But the reality is that human rights, democracy and the rule of law are not inevitable.
We need the institutions, laws and political will to uphold these things.
Eroding them would undermine the common legal space that safeguards Europe’s unity and peace.
But together we can not only prevent this; we can strengthen our Convention system further still.
25 juillet 2018
Lettre au Premier ministre de la Grèce, Alexis Tsipras