THE CONSCIENCE OF EUROPE THE CONSCIENCE OF EUROPE

Document Sample
THE CONSCIENCE OF EUROPE THE CONSCIENCE OF EUROPE Powered By Docstoc
					The Conscience
of Europe
50 Years of the European Court of Human Rights
                                   The Conscience of Europe: 50 Years of the European Court of Human Rights                                                                                            Presentation to the Court of the Four Freedoms Award




Presentation to the Court of the four freedoms award

On 28 May 2010 President Jean-Paul Costa went to Middelburg,                             ‘I am proud and honoured to present this year’s International        human freedoms: freedom of speech and expression, freedom                 Freedoms Award on the European Court of Human Rights, the
the Netherlands, where he received on the Court’s behalf the                             Four Freedoms Award to the European Court of Human Rights.           of worship, freedom from want and freedom from fear. They                 Roosevelt Foundation has bestowed a high honour on the Court.
International Franklin D. Roosevelt Four Freedoms Award in the                               ‘Sixty years ago, in the wake of the most devastating war in     also built on the pioneering work of Eleanor Roosevelt and René           In its name I thank you most sincerely. It is a privilege indeed to
presence of Her Majesty Queen Beatrix of the Netherlands and                             human history, the nations of Europe came together in Rome           Cassin in drafting the Universal Declaration of Human Rights.             be associated with the memory and legacy of the great Franklin
His Royal Highness Prince Willem-Alexander of the Netherlands.                           to draft the European Convention on Human Rights. They were          Above all, they understood that the European Convention on                Delano Roosevelt, as well as of Eleanor Roosevelt, a key actor
The award was presented by Prime Minister Jan Peter                                      inspired by Franklin Roosevelt’s vision. In the dark days of 1941,   Human Rights would need a mechanism to enforce it and uphold              in the elaboration of one of the fundamental texts of the modern
Balkenende, an extract from whose speech follows:                                        he had called for a post-war world founded on four fundamental       its principles. And so, nine years later, the European Court of           age – the Universal Declaration of Human Rights …
                                                                                                                                                              Human Rights was established.                                                 ‘As any human institution, the European Court of Human
                                                                                                                                                                 ‘Since that historic day, a little over 50 years ago, this             Rights has grown and developed. Each decade brought
                                                                                                                                                              unique body has played a central role in strengthening                    some measure of reform to the Convention, extending it and
                                                                                                                                                              democracy and the rule of law. The Court guarantees all                   improving it. This process continues – it is part of the life of a
                                                                                                                                                              Europeans the right to life, to a fair hearing, to freedom of             living institution. But we have to keep in mind our permanent
                                                                                                                                                              thought, conscience and religion, to the protection of their              aim: protect men and women, guarantee human rights.
                                                                                                                                                              privacy and property, and to the free expression of ideas. Its                ‘The European context is a dynamic one. Our societies
                                                                                                                                                              binding judgments have led governments across Europe to                   evolve, advance and diversify, and in so doing face new
                                                                                                                                                              change their laws and amend their Constitutions. In this way              possibilities and challenges, new risks and uncertainties.
                                                                                                                                                              the Court has set an example of international cooperation that            Being directly open to individuals and civil society, the
                                                                                                                                                              is an inspiration to the world.                                           European Court has been confronted with many of the human
                                                                                                                                                                 ‘Over the last 50 years, the European Court of Human Rights            rights questions of the present day, in the 21st century. What
                                                                                                                                                              has ruled on thousands of cases. It has ensured access to                 is the meaning of human dignity in the 21st century? How shall
                                                                                                                                                              justice for every person in our vast and ancient continent. It has        States balance national security and public safety against
                                                                                                                                                              brought security and stability to our society. It has fully earned        individual liberty? What recognition and what protection is
                                                                                                                                                              the respect and support of the member States of the Council               due to the vulnerable, to the marginalized? These questions
                                                                                                                                                              of Europe. And even more important, the people of Europe                  are with us, and the answers given define the character of the
                                                                                                                                                              have found the Court to be a fair and powerful instrument of              societies in which we live.
                                                                                                                                                              justice on their behalf. Today, we gather to celebrate this great             ‘The award today recognizes all that has been achieved
                                                                                                                                                              achievement. Because, as Thomas Hammarberg, the Council of                since the creation of the Court. It is a tribute to the very many
                                                                                                                                                              Europe’s Commissioner for Human Rights, said at the Court’s               women and men, from many walks of life and all corners
                                                                                                                                                              50th anniversary celebration: “The story of the European Court            of Europe, who have contributed to its accomplishments. I
                                                                                                                                                              of Human Rights is undoubtedly a success story.”                          will make special mention of President René Cassin, a great
                                                                                                                                                                 ‘President Costa, you recently said that human rights                  figure in the history of human rights, and firm ally of Eleanor
                                                                                                                                                              require a permanent battle, because they can never be taken               Roosevelt. And, in the presence of Her Majesty and so many
                                                                                                                                                              for granted. “It is my belief”, you said, “that the European              leading figures of Dutch society, it is appropriate to pay
                                                                                                                                                              human rights protection system, as it was first set up and has            tribute to the consistently distinguished representation of the
                                                                                                                                                              been enhanced by 50 years of case-law, has all the necessary              Netherlands on the Court, including a President of the Court,
                                                                                                                                                              characteristics to guarantee it a promising future.” We all share         Gerard Wiarda, and this country’s unwavering support for the
                                                                                                                                                              that belief. Therefore I am presenting this award to you, not             Strasbourg system.
                                                                                                                                                              only to express our deep appreciation for the Court’s service to              ‘I believe, and am confirmed in my belief by the Four
                                                                                                                                                              democracy and freedom in the past, but also on behalf of future           Freedoms Award, that the European Convention on Human
                                                                                                                                                              generations.’                                                             Rights will remain a strong pillar of European construction. And
                                                                                                                                                                 In the course of his reply, President Costa said: ‘It is only          the accession of the European Union to the Convention, which is
                                                                                                                                                              right that I begin my remarks with words of gratitude for the             provided for by the Lisbon Treaty, will be an important mark of
                                                                                                                                                              Roosevelt Foundation. In conferring the International Four                maturity for the process of European legal integration.’
From left to right: Jan Peter Balkenende, Prime Minister of the Netherlands, President Jean-Paul Costa and Mrs Franklin D. Roosevelt Jr.




                                                                                    12                                                                                                                                             13
                                 The Conscience of Europe: 50 Years of the European Court of Human Rights                                                                                          Chapter 1: The Birth of the European Convention on Human Rights




Influence of the Convention beyond the Council of Europe                               Convention be opened to other States, even non-European,            THe CourT’s firsT judgMenT on THe MeriTs: lawless v. ireland (1961)
The Convention provides that it shall be open to the                                   but these proposals have never been accepted.
signature of the ‘Members of the Council of Europe’.                                       Nevertheless, the influence of the Convention has in            The Court’s very first judgment on the merits of a case dealt                                 (d) —    that the Irish government was justified in declaring that a state
In the absence of a clause permitting accession by other                               practice by no means been limited to this closed circle, as is      with a subject-matter which remains topical to this day, namely                                        of emergency endangering the life of the nation existed in the Irish
States, it is thus what is known as a ‘closed’ Convention.                             shown by various extracts and contributions elsewhere in            whether a Contracting State, referring to a perceived public                                           Republic during the period of detention of Lawless.
                                                                                                                                                                                                                                                             —    that the detention without appearing before a judge … appeared to
It has from time to time been suggested – for example by                               this book.                                                          emergency threatening the life of the nation, may legitimately
                                                                                                                                                                                                                                                                  be a measure strictly limited to the exigencies of the situation, in
the Parliamentary Assembly or as regards former colonial                                                                            Jonathan L. Sharpe     derogate from some of the rights and freedoms it has undertaken                                        the sense of Article 15 § 1 of the Convention.
territories that had achieved independence – that the                                                                                   General Editor     to secure to everyone within its jurisdiction. The following are                                  —    that this measure was not, otherwise, a breach of the other
                                                                                                                                                           excerpts from the press release at the time:                                                           obligations of the Irish government under international law, and in
                                                                                                                                                                                                                                                                  conclusion that the detention of G.R. Lawless from 13 July to
                                                                                                                                                                                                                                                                  11 December 1957 was justified by the right of derogation exercised
These pages, yellowed with age, have brought about an unprecedented, almost revolutionary, change in attitude between individual                           ‘1. On 1 July 1961, the Chamber of the European Court of Human Rights called                           by the Irish government in July 1957, in accordance with Article 15
States – and between individuals and the State – in Europe.                                                                                                     upon to examine the Lawless case, rendered, under the Chairmanship of Mr                          of the Convention;
                                                                                                                           Maud de Boer-Buquicchio*             René Cassin, Honorary President of the French Conseil d’Etat, its judgment
                                                                                                                                                                of the merits of the case.                                                               (e) that the communication sent by the Irish government to the Secretary
                                                                                                       Deputy Secretary General of the Council of Europe
                                                                                                                                                                                                                                                             General of the Council of Europe on 20 July 1957, concerning the
                                                                                                               Deputy Registrar of the Court, 1998–2002    2.   The case … concerns Gerard R. Lawless, an Irish national, who … alleged                      measures it had taken, constituted adequate notification under the
Below: Pages bearing the signatures to the European Convention on Human Rights.                                                                                 that there had been a violation of the Convention in his case by the                         terms of Article 15 § 3 of the Convention.
                                                                                                                                                                authorities of the Republic of Ireland, inasmuch as he had been detained
                                                                                                                                                                without trial between 13 July and 11 December 1957, in pursuance of the             9.   The Court ruled, therefore, that the evidence did not reveal a violation by the
                                                                                                                                                                Offences against the State (Amendment) Act 1940. Lawless was suspected                   Irish government of the provisions of the European Convention on Human
                                                                                                                                                                of being involved in the activities of the Irish Republican Army (IRA), an               Rights and that consequently the question of awarding damages to
                                                                                                                                                                armed organization declared unlawful in the Republic of Ireland …                        G.R. Lawless did not arise.’

                                                                                                                                                           5.   When the case was brought up, several preliminary objections and
                                                                                                                                                                questions of procedure were raised by the Irish government as also by the
                                                                                                                                                                Commission. The Court gave its ruling on these questions in its judgment
                                                                                                                                                                of 14 November 1960 …


                                                                                                                                                           8.   In its judgment of 1 July 1961 the Court ruled unanimously:
                                                                                                                                                                (a) that, by the terms of Article 17, no person should be able to avail
                                                                                                                                                                    himself of the provisions of the Convention in order to commit acts
                                                                                                                                                                    aimed at the subversion of the rights and liberties recognized in the
                                                                                                                                                                    Convention, but that this provision, which has a negative aspect,
                                                                                                                                                                    cannot deprive G.R. Lawless – who did not avail himself of the
                                                                                                                                                                    Convention to justify or carry out acts contrary to the rights and
                                                                                                                                                                    liberties recognized in the Convention – of his fundamental rights
                                                                                                                                                                    guaranteed in Articles 5 and 6;


                                                                                                                                                                (b) that Lawless’ detention without appearing before a judge from
                                                                                                                                                                    13 July to 11 December 1957 … was not in conformity with the
                                                                                                                                                                    provisions of Article 5 §§ 1 (c) and 3 of the Convention. By the terms
                                                                                                                                                                    of these provisions, any person about whom it can be “reasonably
                                                                                                                                                                    considered necessary to prevent his committing an offence” can only
                                                                                                                                                                    be arrested or detained “for the purpose of bringing him before the
                                                                                                                                                                    competent legal authority”; once arrested or detained, this person
                                                                                                                                                                    “shall be brought promptly before a judge … and shall be entitled to a
                                                                                                                                                                    trial within a reasonable time.”


                                                                                                                                                                (c) that there has been no violation of Article 7 of the Convention,
                                                                                                                                                                    forbidding the retroactivity of penalties. The detention of G.R. Lawless
                                                                                                                                                                    cannot be considered as resulting from a judgment in the meaning of             President René Cassin, accompanied by Registrar Polys Modinos, reads out
                                                                                                                                                                    the provision in question.                                                      the Lawless v. Ireland judgment.




                                                                                  26                                                                                                                                                           27
                          The Conscience of Europe: 50 Years of the European Court of Human Rights                                                                                 Chapter 3: Fundamental Changes




     A further reform introduced by Protocol No. 14 has                                                                                                                                                  An artist’s impression of the Court’s hearing in
                                                                                                                                                                                                         Dikme v. Turkey in February 2000. (Cartoon by
proved controversial. It is that of allowing the Court to                                                                                                                                                Noëlle Herrenschmidt).
declare applications inadmissible on the grounds that ‘the
applicant has not suffered a significant disadvantage, unless
respect for human rights as defined in the Convention
and the Protocols thereto requires an examination of the
application on the merits and provided that no case may be
rejected on this ground which has not been duly considered                                                                                                                                                 A major signal sent out by Protocol No. 14 is to be found in
by a domestic tribunal’.                                                                                                                                                                                   the new provision permitting the European Union to accede
     Critics of this new admissibility criterion expect                                                                                                                                                    to the Strasbourg system. Along with the corresponding
relatively few cases to fall within its ambit. Some people                                                                                                                                                 provision of the European Union Constitutional Treaty,
object to the very principle of allowing the Court to reject                                                                                                                                               it puts an end to several decades of discussions and
cases in which there has been a violation of the Convention                                                                                                                                                hesitations over whether such a move was desirable
without judgment on the merits, even if they be of little                                                                                                                                                  and whether the nature of the Strasbourg review was
real importance either from a jurisprudential standpoint                                                                                                                                                   compatible with the very essence of Community law. Even
or for the applicants themselves. Supporters of the new                                                                                                                                                    though the details of such an accession remain to be
criterion argue that the Court cannot and must not allow                                                                                                                                                   worked out, the answer now given in parallel and almost
itself to be swamped by a flood of cases that do not raise                                                                                                                                                 simultaneously by the Convention and the European Union
important human rights issues. They say it must be able to                                                                                                                                                 Constitutional Treaty is clear: not only is accession by the
stem the flood of incoming case work, even if that means                                                                                                                                                   European Union desirable, it has become a necessity if
disappointing a proportion of genuine victims. What effect                                                                                                                                                 action by European Union authorities is to enjoy the same
the new criterion will have in practice remains to be seen.                                                                                                                                                degree of human rights acceptability with the citizen as
Protocol No. 14 has only recently come into force (on                                                                                                                                                      action by national authorities. It can only be for the good of
1 June 2010). For the first two years the criterion can be                                                                                                                                                 European unity if there is an integrated overall framework
applied only by Chambers and by the Grand Chamber,                                                                                                                                                         for the development and implementation of human rights
which will develop case-law on its interpretation before its                                                                                                                                               standards in Europe, whatever the legal source of the
application is entrusted to Committees and Single Judges.                                                                                                                                                  measure affecting the citizen.
     Protocol No. 14 contains several other amendments to
the Convention. In order to enhance judges’ independence                                                                                                                                                   [While] Protocol No. 14 will not … itself reduce the volume
it introduces a non-renewable term of office of nine years.                                                                                                                                                of cases coming to Strasbourg … ceaselessly raising judicial
Judges serving when the Protocol entered into force had                                                                                                                                                    productivity has its limits, if only physical ones; nor can it
their term of office increased to a total of nine years if they                                                                                                                                            be a dictat to which the Court should continue to yield at
were then serving their first term or otherwise by two years.                                                                                                                                              all costs, as this would amount not only to an interference
     The Protocol also allows the Court to ask the Committee                                                                                                                                               with the Court’s independence in organizing its judicial
of Ministers to reduce the size of Chambers from seven                                                                                                                                                     work, but would also be wrong in principle. Indeed, the main
members to five for a fixed period. The Committee of                                                                                                                                                       aim of the Convention is not to have as many applications
Ministers is entitled to ask the Court for an interpretation           Ministers urged member States not only to sign and ratify       education and professional training, the verification of            as possible declared inadmissible, but rather to secure
of a judgment and request it to determine whether a                    Protocol No. 14 as speedily as possible to ensure that it       the compatibility with the Convention of domestic laws              effective protection of human rights in the member States.
respondent State has complied with its obligation to abide             came into force within two years but also to implement          and practices and the improvement of domestic remedies.             Driving up the statistics of terminated cases every year
by a final judgment against it.                                        speedily and effectively a number of the Committee’s            The reasoning behind this coupling of measures was that             can be achieved only by concentrating on the easier, more
     Finally, the Protocol provides that the European Union            recommendations. These recommendations, said by the             no matter how efficient it might be, one court cannot be            numerous inadmissible applications, which will inevitably be
may accede to the Convention.                                          Committee to have been adopted ‘to help member States           expected to resolve on its own all human rights issues              at the expense of the more complex, meritorious ones.
     Protocol No. 14 was not an isolated reform measure                to fulfil their obligations’, covered such matters as the re-   arising in an area with a population of more than 800
but part of a wider package of interdependent measures                 opening of cases at the domestic level following a Court        million people. It was also argued that it will not be                                                                    Luzius Wildhaber*
adopted by the Committee of Ministers. Indeed, in a                    judgment, the publication and dissemination of the Court’s      possible to reduce the increasing inflow and backlog of                                                      President of the Court, 1998–2007
declaration adopted on 12 May 2004 the Committee of                    case-law, the inclusion of the Convention in university         cases to and before the Court by procedural reforms alone;



                                                                  56                                                                                                                                57
                                                                                                                                                                                           Chapter 12: The New Building




                                                                                                                                 Public Areas                                                                Works of Art
                                                                                                                                 In principle, the only public area of the building is zone                  The building houses a number of works of art. In the
                                                                                                                                 10, the entrance area between the two ‘drums’. The                          garden at the main entrance can be found four slabs
                                                                                                                                 general public can enter and attend Court hearings in                       of the former Berlin Wall, a gift from the German
                                                                                                                                 the hearing room. However, there are no guided visits                       government symbolizing the country’s reunification,
                                                                                                                                 of the building. For applicants who wish to present                         the hope of all Europeans and the overriding forces of
                                                                                                                                 their cases personally to the Court, the architect                          freedom. At the southeastern entrance to the parking
                                                                                                                                 envisaged cabins with bullet-proof glass panes between                      area is a gift of the Swiss government, The Petrified
                                                                                                                                 the applicant and staff. However, these cabins are                          Seven, expressing the trauma of physical and mental
                                                                                                                                 reminiscent of the speaking booths in prisons. They are                     violence and symbolizing the Council of Europe’s
                                                                                                                                 still being used but now tables have been set up in the                     essential role in the protection of human rights.
                                                                                                                                 public area where Registry staff may meet and speak                                                                  Mark E. Villiger
                                                                                                                                 with applicants more openly.                                                                                       Judge at the Court

                                                                                                                                 The P-Room
                                                                                                                                 One room – in fact, a prison room – has been set aside
                                                                                                                                 for applicants who wish to present their case personally
                                                                                                                                 at a hearing before the Court but who are serving a
                                                                                                                                 prison sentence in their home country. To facilitate the
                                                                                                                                 applicant’s supervision while in the building, a secure
                                                                                                                                 room with en-suite facilities has been set aside for the
                                                                                                                                 applicant. So far, it does not appear that the P-Room
                                                                                                                                 has ever been used for this purpose.




open the windows?’) Only one person was interested, and          sunshades above the windows, which were designed to
some 60 people said they did not want air-conditioning.          break up the light rays and thus reduce the temperature.
This was the beginning of a long and complicated story.          However, temperatures on the fifth floor became unbearable,
    In order to avoid heat in summer, mechanical blinds          and judges started covering the windows with newspapers,
were fixed in front of each window. However, these               which was aesthetically less pleasing. On one memorable
blinds functioned (as they still do) not individually but        day – when temperatures in their offices had risen to 40oC –
automatically for the whole window frontage of a floor by        judges even went on strike.
means of a highly sophisticated system of photosensitive             The difficulty was that once the building had been
cells, which register the temperature and set the system         completed, it was no longer possible to install the large air                        Above: First-day cover issued for the inauguration
                                                                                                                                                      of the new building in 1995.
in motion. The cells are further assisted by a computer          vents that proper air-conditioning would require. Instead,
                                                                                                                                                      Above right: The Petrified Seven by Carl Bucher –
programme that is adapted to the seasons. Blinds could not       a water-cooling system was installed, and this now ensures                           a donation by Switzerland.
be installed on the top, fifth floor where judges had their      agreeable working temperatures all year round. On the fifth                          Right: Four-part panel of the Berlin Wall –
offices, and there, the architect planned specially patented     floor there are now blinds, which can be used manually.                              a donation by Germany.




                                                               154                                                                                                                                         155
chapter
 13
The Achievements of the
Strasbourg Court

 The European Court of Human Rights … is more                  At first sight this statement might strike the reader as
 than just another European institution, it is a symbol.       somewhat audacious. But it is not: it is accurate. The
 It harmonizes law and justice and tries to secure, as         European Court of Human Rights is unique. In terms of
 impartially and as objectively as is humanly possible,        numbers, no other international tribunal deals with so
 fundamental rights, democracy and the rule of law             many cases. In terms of substance, no other supervisory
 so as to guarantee long lasting international stability,      body has been able to reach such a level of sophistication
 peace and prosperity … The European Convention                in shaping and refining human rights standards. In terms
 on Human Rights has brought into being the most               of significance, the Court’s judgments have an impact
 effective international system of human rights                matched by no other human rights body, not only on the
 protection ever developed. As the most successful             parties whose disputes are settled in final and binding
 attempt to implement the United Nations Universal             rulings, but also on the community of 47 Contracting
 Declaration of Human Rights of 1948 in a legally              Parties as a whole. In terms of legal status, few treaties
 binding way, it is part of the heritage of international      can claim to have developed from common international
 law; it constitutes a shining example in those                undertakings to instruments of a constitutional standing,
 parts of the world where human rights protection,             and there is arguably no court in the world that has done
 whether national or international, remains an                 so much for the emancipation of the individual as a subject
 aspiration rather than a reality; it is both a symbol         of international law.
 of, and a catalyst for, the victory of democracy over             In other words, while many would readily agree that the
 totalitarian government; it is the ultimate expression        Court has achieved a lot, any attempt to capture in a few
 of the capacity, indeed the necessity, for democracy          words what it has accomplished in half a century of judicial
 and the rule of law to transcend frontiers.1                  work faces the problem that its achievements stretch in so
                                            Luzius Wildhaber   many different dimensions. And one could add still others.
                          President of the Court, 1998–2007    For instance, the Court’s most revealing accomplishment



                                                            162

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:6
posted:8/4/2011
language:English
pages:6