Two great speeches which shame the UK

Two great speeches which shame the UK

Solemn hearing of the European Court of Human Rights on the occasion of the opening of the judicial year

Friday 27 January 2012

Address by Sir Nicolas Bratza President of the European Court of Human Rights

Presidents, Excellencies,
Monsieur le Président du Conseil Général du Bas-Rhin,
Monsieur le Sénateur Maire,
Deputy Secretary General, colleagues, ladies and gentlemen,

It is always a great pleasure to welcome our distinguished guests to this ceremony, with which we mark the opening of the judicial year. It is course for us particularly pleasing to see so many senior representatives from national courts.
I must also welcome former colleagues and in particular my predecessors, Jean-Paul Costa and Luzius Wildhaber.

I must greet too the representatives of the local community and the host State who do us the honour of joining us this evening. Finally, those who represent our parent institution, the Council of Europe, parliamentarians, permanent representatives and senior officers, also have their role and their stake in the Convention system. The Court needs their support and I thank those of you who are with us today for this ceremony. The protection of human rights is too important and too complex a business to be monopolised by one institution or body; it requires a collective effort as the authors of the Convention recognised.

The omens for 2012 are hardly auspicious. The economic crisis with its potential for generating political instability seems to spiral further and further out of control. All our societies are experiencing difficulties that few of us can have foreseen only a short time ago. In this environment the vulnerable are more exposed and minority interests struggle to express themselves. The temptation is to be inward-looking and defensive, for States as well as individuals. Human rights, the rule of law, justice seem to slip further down the political agenda as Governments look for quick solutions or simply find themselves faced with difficult choices as funds become scarce. It is in times like these that democratic society is tested.

In this climate we must remember that human rights are not a luxury.

And yet at the same time events in North Africa and part of the Middle East and more recently in Burma remind us that the aspiration for fundamental rights and democratic freedoms is universal. The humbling courage of ordinary people in Cairo, Tripoli and Homs brings home to us the true value of ideas and principles which we too often take for granted. It also reminds those of us who have the privilege of working within this system why we are here.

Looking at these different contexts I draw what is for me an inescapable conclusion. That is that the argument for effective international action to secure human rights and democracy is as compelling as it has ever been. Council of Europe countries which already have the benefit of what is incontestably the leading mechanism for international human rights protection have a responsibility to themselves but also to the wider international community to preserve and indeed build on their extraordinary achievement in giving concrete expression to the ideals and hopes expressed in the Universal Declaration.

I make no apologies for beginning this evening by addressing the broader picture because I do not believe that what we do here in Strasbourg can be seen in isolation but also because it helps us put into perspective the difficulties confronting us, while placing them in a context which perhaps makes it easier to focus on priorities. For several years now the Court has been treated as a patient whose sickness if not terminal is all but incurable, or at least the eminent physicians summoned to diagnose the disease have seemed unable to agree on the cure to be prescribed. The reform process leading up to Protocol No. 14, the Wise Persons report, the Conferences of Interlaken and Izmir and a new conference to be held under the United Kingdom Chairmanship of the Committee of Ministers this year; these are all evidence of the efforts made to adapt the Convention system to the situation of massive case-load which was the inevitable consequence of the enlargement of the Council of Europe to include post-communist states as they embraced democracy.

While I do not underestimate the challenges which still face us and while I am grateful for the different initiatives taken by Governments chairing the Committee of Ministers, I think we have sometimes lost sight of more healthy signs of life. Firstly throughout this period of intense activity on the reform front, the Court has continued to deliver a substantial number of judgments on important issues of human rights jurisprudence. A glance at the short case-law survey in the provisional version of the annual report for 2011 which is available today indicates the range of cases dealt with and how the Court has steadily continued to apply the Convention and its own case-law across a wide spectrum of issues. In doing so it fulfils its Convention mission of maintaining and strengthening human rights at national level. These cases which commonly require a delicate balancing of sometimes multiple competing interests are the essence of the Court’s work. They are perhaps the most important yardstick by which the effectiveness of the Convention machinery should be measured.

But the Court has also taken a number of decisive and rather bold steps designed to enhance the effectiveness of the Convention system. Without going into details, as many of you will be aware, it developed the pilot judgment procedure in response to the proliferation of structural and systemic violations capable of generating large numbers of applications from different countries. It has also adopted a prioritisation policy under which it aims to concentrate its resources, and particularly those of the Registry, on the cases whose adjudication will have the most impact in securing the goals of the Convention, as well as those raising the most serious allegations of human rights violations. Finally, in implementing Protocol No. 14 the Court has sought to achieve the maximum effect for the Single Judge mechanism, under which a Single judge assisted by a Registry rapporteur carries out the filtering function. The results obtained using this new procedure have been spectacular, with an increase of over 30% of applications disposed of in this way.

In direct response to the Interlaken and Izmir Conferences the Court has also made a considerable effort to increase the information available on its procedure and particularly on admissibility conditions. Thus the Court has published a detailed admissibility guide now available in 14 languages, notably thanks to contributions from different States. At the end of last year it put an admissibility checklist on its internet site, with a progressive sequence of questions aimed at helping potential applicants understand the reason why their application might be declared inadmissible. Just yesterday we launched a short admissibility video produced with the support of the authorities of Monaco which aims to get across the message in a simple graphic way that 90% of applications fail to meet the admissibility conditions and what those conditions are.

Another example of responding to concerns expressed at these conferences is the reorganisation in 2011 of the Court’s internal set-up for dealing with urgent requests for interim measures under Rule 39 of the Rules of Court. Having been nearly submerged by such requests just over a year ago, the Court changed its procedures at the judicial and administrative level, revised its practice direction, and, through its President, made a public statement on the situation. These measures have produced their effects quickly, returning this aspect of proceedings to a more normal rhythm.

I think that it is therefore fair to say that the Court has done broadly what it was asked to do under the different declarations and action plans. We now await proposals to be brought forward under the United Kingdom Chair in preparation for a conference to be held in Brighton in April, as announced by the Prime Minister this week in his speech to the Parliamentary Assembly. Before leaving the topic of the Court’s input to the reform process, I should like to take up one claim that has been repeated in different quarters and comes back at regular intervals. This is that the Court and its Registry are in some way inefficient and that that is why a backlog has been allowed to build up. I categorically refute that suggestion which is indeed offensive to the many highly committed and hard-working judges and officials who make up the Court and its Registry. What may be considered to be inefficient is the system, which was not designed to cope with the massive case-load with which it is now confronted. Within the means available to it, the Court has done everything it can to rationalise and streamline its processes and with remarkable success, as has been confirmed by a number of outside observers and by a consistent increase in its overall productivity. This year our working methods will be scrutinised by the French Court of Auditors, who are the Council of Europe’s external auditors and while there is always something to learn from these exercises I have no doubt that they will recognise that much has already been achieved.

But as was acknowledged at both Interlaken and Izmir, the Convention is a shared responsibility. The Court self-evidently cannot shoulder the whole burden of its implementation. As is clear from the terms of the Convention and as the Court has consistently stressed the primary responsibility for securing the Convention rights and freedoms falls on the Contracting States themselves. This means in particular acting to prevent violations and establishing remedies to afford redress where breaches are committed. Where States do this seriously, where national courts apply the Convention and its case-law convincingly, the Strasbourg Court’s task is made considerably easier. The importance of effective action at domestic level has been recognised at every stage in the reform process, notably in the package of Resolutions accompanying Protocol No 14 and in the Interlaken and Izmir declarations.

One crucial area in this respect is the proper execution of judgments. The taking of timely and appropriate general measures to eliminate the causes of the violation found is a key component of the Convention system, among other things, because it reduces the risk of future applications brought on the same basis. Where the Court finds that the violation is of a structural, systemic or endemic character, speedy remedial action at national level is even more critical. Failure to take such action in good time results in what we refer to as repetitive cases. The Court currently has over thirty thousand such cases on its docket. This phenomenon represents a significant obstacle to the smooth functioning of the Convention system as a whole and serious efforts must be made to identify effective solutions. Ultimately these are cases which should not be before the Court; there is typically a clear breach and the Court’s only role is to establish the amount of compensation to be awarded. The only effective response to these situations lies with the Contracting States themselves. So far we would say that the responsibility for these cases has not been shared equitably.

Another important aspect of effective Convention implementation is the role of the national courts and the necessary dialogue between Strasbourg and its national counterparts, as I mentioned earlier. Despite what is sometimes heard, the Court is highly respectful of national courts and their place in the Convention system.

National courts applying themselves the Convention can be influential in the way in which the Court’s own interpretation evolves. In pursuit of this dialogue we have regular working meetings with national superior courts, just this week for instance with the German Federal Constitutional Court.

But there is also scope for judicial dialogue through judgments and decided cases. I would cite one recent example in relation to my own country - the Grand Chamber’s judgment in the case of Al-Khawaja and Tahery. The Supreme Court of the United Kingdom conveyed to Strasbourg its misgivings over what it perceived as an inflexible application of the Court’s case-law on the fairness of relying on hearsay evidence, with no proper regard to the specific features of the country’s rules of criminal procedure. This view was considered carefully by our Court, and responded to at length in the Grand Chamber’s judgment. It was, in my view, a very valuable exchange, conducted in a constructive spirit on both sides.

There is, of course, as things stand, no formal, direct channel permitting such communication or exchange within the Convention system. Whether there should be a new, purpose-made procedure for dialogue between national courts and the European Court is a question now under consideration in the broader reflection on future reforms.

Ladies and gentlemen, the notion of shared responsibility runs through the Convention, responsibility shared between the Court and the Contracting States, but also between the Contracting States themselves. It relates firstly to implementation of the Convention and particularly the execution of judgments, the clearest expression of the principle of the collective guarantee. States are responsible for their own and each others’ respect for human rights. But they are also responsible for the Convention machinery and its proper functioning. This includes ensuring that the Court is properly resourced. I am of course aware of the budgetary constraints imposed on the Council of Europe and the very real economic difficulties facing member States. I am also conscious of the special efforts that have been made until recently if not always to increase, at least to protect the Court’s budget. I would simply say that if the innovative measures taken by the Court are to be fully exploited, as long as the volume of incoming cases continues to increase, some additional financial support will be necessary.

But support for the Court should be more than just financial. As Judges we are responsible for ensuring that the Court’s judgments continue to be of appropriate quality to carry sufficient weight. I do not expect Governments to agree with all the Court’s judgments and decisions and they are naturally free to express that disagreement. Where they feel the need to do so, I would urge them to use terms which do not undermine the independence and authority of the Court and which seek to rely on reasoned argument rather than emotion and exaggeration. Democracy cannot function effectively without the rule of law; there can be no rule of law without respect for an independent judiciary, and that is true at European as well as domestic level.

One important issue for the future of the Convention system is EU accession. Last October a draft accession treaty was submitted by the Steering Committee for Human Rights (CDDH) to the Committee of Ministers of the Council of Europe for consideration and further guidance. However, since then the process seems to be stalled. Without accession the EU is left in the anomalous position of not being subject to the same external scrutiny as its Member States. Moreover accession is now urgently needed for the sake of preserving legal certainty in the field of European fundamental rights protection. The increasing number of binding legal instruments laying down fundamental rights within the EU legal system – and the risk of confusion which goes with it – only reinforces the need for an external mechanism capable of providing legal certainty as to the minimum protection standard applicable in the field. This was recognised in the Lisbon Treaty which provides that this anomaly is to be removed. After some thirty years of discussion all that now appears to be lacking is the political will to overcome the last obstacles. I would therefore urge the Member States to make every possible effort to reach a compromise allowing the completion of the process.

Ladies and gentlemen, this is the first time that I have been called upon to address this gathering, but as it is also the last time, since my term of office comes to an end next autumn, I hope you will forgive me a personal reflection as someone who has been involved with the Convention for over 40 years, as counsel, member of the Commission and a judge of the Court itself. Looking back over the first 50 years of its existence, the achievements of the Court in setting standards throughout Europe and giving practical effect to each of the fundamental rights in the Convention have been truly remarkable.

Any process of selection is inevitably subjective. But certain of its achievements stand out. The Court’s protection of the right to life by its repeated insistence on a prompt, independent, effective and transparent investigation into killings and sudden deaths, whether at the hands of the agents of the State or otherwise and the Court’s implacable opposition to the use of the death penalty, whether in member States or elsewhere. The increasing firmness shown by the Court in outlawing acts of ill-treatment of those in custody, in requiring an effective investigation into allegations of ill-treatment and in condemning unacceptable conditions of detention. The Court’s continuing emphasis on the fundamental importance of prompt judicial control of all forms of detention. The Court’s insistence on the independence and impartiality of national tribunals and its development of the principle of legal certainty to prevent the arbitrary quashing of final and binding judgments of the domestic courts. The strong protection given by the Court to private sexual relations, in particular private homosexual relations, whether in civilian life or in the armed forces; its insistence that any system of covert surveillance should have effective statutory safeguards against abuse; and the increased attention shown to affording protection against media intrusion into the private life of individuals. The Court’s strong defence of the freedom of the Press, particularly when fulfilling their watchdog role and of the rights of journalists to protect their sources. And last, but not least, the increasing attention attached by the Court to the protection of minorities and the prohibition of discrimination on grounds of race, ethnic origin and gender.

What of the future? There are as I have indicated grounds for real optimism, but there are also major challenges. What is indispensable is to ensure that the Court remains strong, independent and courageous in its defence of Convention rights. But, of equal importance is that the Court should be able to assume the supervisory role for which it was designed. This it can only do with the help of the member States themselves and their willingness to assume their primary responsibility not only of protecting and giving effect to fundamental rights but of remedying breaches of those rights as and when they occur.

The British Prime Minister, David Cameron, in his speech to the Parliamentary Assembly this week acknowledged the importance of Contracting States, as he put it, "getting better at implementing the Convention at national level". He also recognised the strategic importance of fundamental rights protection over and above purely national interests. The Prime Minister finished his speech by promising us that the reform proposals put forward by his Government would, to use his own words again, be "built on the noble intentions of the Convention" and "driven by a belief in fundamental human rights and a passion to advance them". I think that aspiration is something that we can all subscribe to. Thank you.

I turn now to our invited speaker this evening, Mr Thomas Hammarberg, Council of Europe Commissioner for Human Rights.

Commissioner, by inviting you to speak this evening as your term of office draws to a close we wished both to recognise the important role that other Council of Europe actors play within the Convention system and to pay tribute to your own tireless work for human rights throughout the Council of Europe States. You have built successfully on the foundations laid by your predecessor to make the office of Commissioner an essential point of reference on the landscape of European human rights protection. Your personal authority on an impressive range of human rights issues is acknowledged throughout Europe. You have also been an effective advocate for the European Court of Human Rights throughout your time in Strasbourg. We welcome you this evening as our honoured guest, and I invite you to take the floor.

The Court of Human Rights versus the “court of public opinion”

Remarks by Thomas Hammarberg, Council of Europe Commissioner for Human Rights

Solemn Hearing of the European Court of Human Rights

Strasbourg, 27 January 2012

President Bratza,
Members of the Court,
Excellencies,
Ladies and Gentlemen,

Thank you for inviting me to this event today, marking the opening of the Court’s judicial year.

The last time I had the honour to speak in this very room was during a hearing before the Grand Chamber on the case of M.S.S. v. Belgium and Greece. That was in fact my first oral intervention here.

On that case the Court delivered a judgment a few months later which had wide-ranging consequences for the protection of the human rights of asylum seekers in Europe: it recognised that the living conditions asylum seekers had to endure in Greece amounted to degrading treatment.

In response several member states then suspended returns of asylum seekers to Greece. The findings of the Court also prompted more calls within the European Union for a rethink of the ‘Dublin Regulation’ itself.

The significance of the Court I have now served as Commissioner for Human Rights for almost six years. I have travelled all over the European continent. I have visited police stations, courts, penitentiary institutions, refugee camps,
Roma settlements, shelters for battered women and care institutions for both disabled children and adults.

At the same time I have had discussions with active civil society groups, ombudsmen, equality commissions, prosecutors, judges and other representatives of the judicial system as well as with local politicians, parliamentarians and, of course, Government leaders, ministers and other governmental representatives.

Based on these experiences I can testify to the enormous importance of this Court.

- One. The Court is certainly important for individual victims who are given an opportunity to obtain justice when this is denied at home. This is also a relief for the families of the actual victims, who are in many cases victimised themselves.

- Two. The fact that such Court decisions oblige national authorities themselves to take concrete action to remedy the violations committed against individual victims is crucial. An example is set when a mistake is corrected by the same authorities which previously failed.

- Three. There is, moreover, an essential preventive dimension in the way the system works. Court decisions remind governments about the need for changes to laws and procedures to avoid future violations of the European Convention. I can testify that this dimension is in fact taken seriously by decision makers in most member states.

- Four. The interpretative authority (res interpretata) of the Court’s judgments is also important.

National legislators and courts must take into account the Convention as interpreted by your Court – even in judgments concerning violations that have occurred in other countries. In all European states, law, policy and practice are now heavily influenced by the Court’s decisions.

- Five. There is one more dimension to highlight, which is somewhat difficult to define but no less important. The fact that an individual can appeal to an international court when he or she feels let down by the domestic justice system and that governments will have to listen to the response of this body – on the case itself and on the system at the origin of the case – has a broader psychological
effect. In short, it gives hope to quite a number of people – not only to those who file complaints or want to do so, but to many others as well.

The mere existence of such an international court - principled, impartial and fair in its procedures and rulings - is an encouragement for people working for human rights throughout the continent. I have noticed that this Court is an inspiration for people and courts outside Europe as well. Indeed, its judgments are looked upon by superior courts all over the world.

Essential features of the European system I hope these aspects of the system will not be forgotten in the ongoing discussion about the need to reform the Court. In spite of my enthusiasm I do agree that changes are needed - in order for the
Court to be able to cope with its workload and for it to play its role as the supreme interpreter of the European Convention in a truly competent manner.
However, everything that I have learned has made me believe that there are some features of the system which definitely must be protected through the reform process. One is the possibility of individual petition. Another is the principle of collective guarantee. A third one is the notion of the Convention as a “living instrument”, allowing the Court to make dynamic interpretations of the rights
set forth in the Convention.

The right of individual petition – giving an individual the right to seek justice, as a last resort, at supranational level – should in my opinion remain a key characteristic of the European human rights protection system.

There is deep concern among human rights organisations that this right will be undermined by the reform process. Even the less dramatic proposals such as introducing a fee or requiring communications via a professional attorney have met their opposition. This is understandable, as the individuals most in need of protection may lack economic resources or access to lawyers.

The dilemma is of course how to combine the principle of individual petition with an effective “filtering” mechanism which would make it possible for the Court to focus on the key problems - and with limited delays. This is clearly one of the major issues for the reform process and I notice that positive steps are already being taken by the Court itself to square this circle.

Another essential feature of the system which should be protected is the inter-state dimension. The Convention is built on the notion of a collective guarantee. This could be described as a reciprocal agreement between the state parties based on the understanding that they - and their people - all have an interest in the protection of human rights, including in other states, and an interest in safeguarding the rights of individuals throughout Europe.

I am convinced that this idea that we all benefit when human rights are respected all over the continent has become even more important with time. Less than ever are the nation states isolated from their neighbours – I do not need to mention the obvious link between human rights and peace; or the relationship between human rights and migration; or the simple fact that each and every state nowadays has citizens in other countries.

The principle of collective guarantee is also reflected in the peer approach to the monitoring of the execution of Court decisions - by the member states together in the Committee of Ministers. The possibility in the Convention for inter-state complaints is another reflection. However, most important in my view is the very spirit: that we are in this together.

A consequence of this attitude is that all member states should be concerned when the Convention is violated in another country and, also, that every member state should accept that they themselves may be subject to the Court’s procedures. No government is given immunity and member states are not divided into categories; they must all, as a matter of principle, be treated equally, according to the
same standards. Those with better systems at home will have fewer problems in Strasbourg.

I mentioned the notion of the Convention as a “living instrument” and argued that this approach should also be protected. The fact that the Court has established a practice of dynamic interpretations is indeed crucial for its relevance.

After all, our societies have developed enormously in the past six decades. One example is the revolutionary changes caused by new information technologies. In other areas too, totally new human rights issues have emerged since the Convention was first drafted - problems which were unknown at the time.

The Court has of course received complaints through the years on human rights violations which are not specifically mentioned in the Convention and its response has been to apply the principles of the Convention to these new situations. Any other approach would have limited the usefulness of the Convention and the Court’s procedures.

It should, however, be admitted that this is a difficult task and a genuine challenge to the wisdom of the judges. This is particularly the case when it comes to the development of attitudes in society which may, to complicate the matter further, also differ considerably between member states. Of course, the possibility of having additional protocols drafted, adopted and ratified does exist but would not meaningfully address this problem in all its depth.

However, I do consider that the Court on the whole has handled this challenge in a proper manner.

Criticisms about “judicial activism” or arbitrariness have really not been fair.

The approach has been serious. The judges have not introduced just personal ideas; they explore whether there is a consensus on such cases in the superior courts in the member states; they analyse decisions of other international jurisdictions; and they take into account, when relevant, treaty developments in the UN.

Rulings of particular interest and relevance

The image and reputation of the Court is of course primarily influenced by its actual rulings on controversial issues – and media reactions to these decisions. The British newspaper The Guardian carried the other day an editorial with the headline: “European court of human rights: Judgment day”.

Yes, the article did describe two Court decisions, but the word “judgment” referred to something else.

The editorial started with these words: “In the dock at the court of public opinion was Europe’s human rights framework”. It turned out that the paper in this particular case felt that the Court had in fact passed the test. It even wrote that the judges showed themselves to have been hard-headed, principled and pragmatic.

Not every institution manages to be praised in the media for being, at the same time, both principled and pragmatic…

The “court of public opinion” is indeed a challenge – and primarily for responsible politicians in member states. It may be tempting to exploit populist media reactions against inopportune, though principled Court decisions, but I think that those who know better should instead seek to clarify the role of the Court and the legal issues at stake.

The Court itself should not be forced to enter into discussions on this level.
Let me refer to some decisions of the Court which may have been controversial but have had a particular significance for the promotion of justice on our continent. I already mentioned the landmark decision on the ‘Dublin Regulation’. There have been other key decisions preventing the deportation of people to countries where they are at risk of torture or other ill-treatment.

Decisions on cases of discrimination against Roma people have been particularly helpful in my own efforts to promote the rights of individuals within this heavily abused and disadvantaged minority. One example is the Court’s positions on the rights of Roma children to enjoy education without discrimination.

The fact is that Roma children in a number of countries are disproportionately represented in schools for children with intellectual disabilities. They can also be sent to mainstream schools which are Romaonly, or to Roma-only classes in mixed schools. In all cases, the tendency is that they receive substandard education.

The Court has addressed these aspects in three important judgments: against Greece, for non enrolment; against Croatia, for separate classes; and against the Czech Republic, for routinely putting Roma children in schools for people with intellectual disabilities. The standards these decisions have set are binding on all states; they should all make sure that their practices are in line with these
judgments.

The judgment in the case of A. v. the United Kingdom was in my view another landmark decision. It was the first ruling on parental corporal punishment and one of the relatively few cases brought before the Court by a child applicant. The judgment required the state to provide children, as vulnerable individuals, with adequate protection, including effective deterrence, against degrading punishment.
The conclusion in this case was that repeated, forceful hitting of a child was in breach of Article 3 of the Convention.

During the last two decades the Court has also taken steady steps to address problems related to homophobia and transphobia. A major result is that homosexuality is now decriminalised across Europe and there is a new awareness of the situation of transgender people.

Article 14 of the Convention has rightly been interpreted to cover discrimination on grounds of sexual orientation and gender identity. The Court has acknowledged that the right to respect for family life under Article 8 of the Convention also covers same-sex couples. This opens up new perspectives for the recognition of the human rights enjoyed by members of LGBT families, including children.

Another area in which particularly crucial decisions have been made is the human rights of persons with disabilities. The Court has made the point that persons with mental health problems or intellectual disabilities tend to be vulnerable and have in many cases suffered considerable discrimination throughout their lives. In view of the long-standing prejudices against them, it is particularly important
to avoid further social exclusion.

In 2010 the Court examined the banning in Hungary of such individuals from taking part in general elections. The Court found such a blanket, automatic ban to be inadmissible. An indiscriminate removal of voting rights based solely on a mental disability requiring partial guardianship was found not compatible with the European Convention and the fundamental democratic principle of universal
suffrage.

The blanket denial of voting rights for prisoners is another important issue which the Court has dealt with - and thereby provoked a judgment by the “court of public opinion”, or at least by the tabloid press in one particular member state.

In fact, the Court has given a wide margin of appreciation to member states on this issue: it has left to them to determine which categories of prisoners, if any, could be deprived of the right to vote and how to apply the agreed criteria for such decisions. I am aware that a case on this issue is still pending before the Grand Chamber.

It is very useful that this issue has come up for Europe-wide discussion. The matter itself is of great principal importance and practices vary widely between the member states.

My own opinion is that if the deprivation of voting rights is to be introduced as a punishment there should be a logical connection between the offence and this particular sanction. Furthermore, such decisions should be individual, for the duration of the imprisonment only and be based on a judicial procedure.

The principle of universal suffrage is, after all, a cornerstone of democracy; there should be extremely strong reasons for depriving anyone of the right to vote. This right symbolises belonging to the human community. We are no longer excommunicating from our societies people who are “unwanted”.

This is also a question of purpose. It can hardly be argued that disenfranchising prisoners would deter crime or facilitate the reintegration of convicts after release into a normal, law-abiding life in society.

In fact, a large number of member states do indeed allow imprisoned citizens to vote and I have noticed that there is no public pressure in those countries to change this policy.

Non-implementation of judgments – and the consequences

Of course, some judgments are not welcomed by the governments concerned. This is obviously one reason why Court decisions are implemented slowly or not at all. Non-execution is indeed a major problem in the current system.

Though the majority of member states do comply with the Court’s decisions, there are some which are strikingly slow to abide by their obligation to execute the judgments. Some important Court decisions have remained unimplemented after several years despite guidance given by the Committee of Ministers.

This is unacceptable. It is another injustice against the individual whose rights had been endorsed by the Court. It undermines the credibility of the protection system as such.

It is also one of the roots of a very concrete problem for the Court itself: it tends to cause so-called ‘repetitive applications’ – new applications coming in on issues which have already been the subject of Court decisions and therefore should have been resolved by the respondent member states.

These ‘repetitive applications’ contribute to the overloading of the Court, which in turn creates the risk of delayed decisions in general. This is a situation which produces a number of negative chain-effects.

I am sad to report that I have met people who have declared that they have decided not to bring their urgent case to the Court because they felt they could not wait so long for a judgment. This is particularly problematic in cases where the potential applicant fears harassment after having filed his or her complaint.

I have in fact received information about threats against applicants because of their complaints to Strasbourg. This is intolerable. As the Court has stated, applicants or potential applicants should be able to communicate with it freely, without being subjected to any form of pressure from the authorities to withdraw or modify their complaints.

Violations should be remedied at home

The Court is overloaded. As you know, more than 60,000 new applications were filed last year and the number of pending cases is now over 150,000.

It must be stressed that the problem is not that people complain, but that many of them have reasons to do so.

In more than 80 per cent of the judgments delivered since 1959, the Court has found at least one violation of the Convention by the respondent state. The main reason why the Court is overloaded is that people have found that justice could not be obtained at home.

The obvious answer is that much more must be done to protect human rights at home, at the domestic level.

The European system was never intended to act as a long-term substitute for national mechanisms – quite the reverse. Each individual should be able to seek and receive justice at home, in line with the principle of subsidiarity. Recourse to an international court should be seen for what it is – essentially a failure to provide proper national remedies.

The problem is that the judicial processes in European countries are far from perfect. In fact, many of the complaints to the Strasbourg Court relate to excessively slow proceedings and to the failure of member states to enforce domestic court decisions. In several European countries, court decisions are
often enforced only partly, after long delays, or sometimes not at all. Flawed execution of final court decisions must be seen as a failure to uphold the rule of law.

Domestic courts themselves are not functioning as they should in a great number of states, and former communist countries in particular have been slow to develop a truly independent and competent judiciary. Corruption and political interference are undermining public trust in the system.

In several European countries there is a widespread belief that the judiciary is corrupt and that the courts tend to favour people with money and contacts. Though this perception may sometimes be exaggerated, it should be taken seriously. No system of justice is effective if it is not trusted by the population.

While there has also been some progress, I have observed that the independence of judges is still not fully protected in some of the countries I have visited.

Political and economic pressures still appear to influence the courts in some cases. Ministers and other leading politicians do not always respect the
independence of the judiciary and instead signal to prosecutors or judges on what is expected of them.

In other words, more needs to be done in order to implement the Convention through the national courts. After all, the Convention is part of the law of the land in all member states. This is expressed in different manners, an interesting model being the Human Rights Act in the United Kingdom.

On a positive note, let me also mention the significant impact of the various national human rights structures such as parliamentary ombudsmen, equality bodies, data protection commissioners, children’s ombudsmen, police complaints commissions and other similar mechanisms. When they are allowed to act truly independently, they have the potential to improve the human rights situation considerably.

Building a human rights culture also requires governments to introduce policies which encourage freedom and pluralism of the media and the emergence of active civil society groups.

For me the problems of the Court are primarily symptoms of a deeper crisis: human rights principles are still not taken sufficiently seriously in our member states. This, in turn, underlines the essential linkage between the Court and other parts of the Council of Europe.

What future for the Court?

However, this is not an excuse to slow down the reform process of the Court itself.
In fact, this process is ongoing and the Court is self-reforming. As President Bratza pointed out, it has adopted a prioritisation policy to concentrate resources on the cases which will have the most impact on securing the goals of the Convention. The adoption of Protocol 14 has made it possible to decide on admissibility through a single judge procedure and this has already helped to speed up the process.

It is also important to avoid that the outside pressure to reform turns into a numbers game. The focus must be on quality rather than on quantity. Well reasoned judgments on key issues are the particular strength of this Court. High quality interpretations of the Convention should be the highest priority.

My emphasis on the need for reforms at national level means that the further development of contacts and dialogues with the national courts is essential and will certainly have positive chain effects – including on the workload.

Improved information on the Court and its proceedings is essential and the new guide and video on admissibility are welcome developments. Such information should be a preoccupation for the whole of the Council of Europe – including its field offices – but of course also for the domestic structures in member states. With time this may well reduce the number of ill-founded applications. But more
importantly, it will contribute to the building of a more solid human rights culture in our Europe.

What about the judgment of the “court of public opinion”?

We should not be nervous. That “court” has other “judges” than the tabloid press – and these “judges” rule in favour of our Court.

In fact, they regard it as invaluable; they want it to have sufficient resources and they are ready to provide constructive advice for its future work.

Thank you.