Effective Protection of Fundamental Rights in a pluralist worl

Lawson, R.A.

Leiden University Scholary Publications

The ECHR at 70: A Living Instrument in Precarious Present-day Conditions - Leiden Law Bloghttps://leidenlawblog.nl/articles/the-echr-at-70-a-living-instrument-in-precarious-present-day-conditions[18-1-2021 15:49:22]leidenlawblogHOME  CONTRIBUTORS  DOSSIERS  ABOUT  Rick LawsonProfessor of EuropeanHuman Rights LawThe ECHR at 70: A LivingInstrument in PrecariousPresent-day Conditions February 07, 2020 •   Public Law •  3 comments •   7 min readThe European Court of Human Rights must respond immediately tocases where it is argued that judicial independence is undermined.The Court should review its priority policy as well as its practiceconcerning interim measures.The European Convention on Human Rights (ECHR) was adopted in 1950. Seventyyears later it is still alive and kicking. This is in no small part due to a judgment of thelate 1970s. In the famous Tyrer case the European Court of Human Rights observed:‘the Convention is a living instrument which … must be interpreted in the light ofThe ECHR at 70: A Living Instrument in Precarious Present-day Conditions - Leiden Law Bloghttps://leidenlawblog.nl/articles/the-echr-at-70-a-living-instrument-in-precarious-present-day-conditions[18-1-2021 15:49:22]present-day conditions’.This statement marks the introduction of the so-called evolutive doctrine. The Courtrejected a static or originalist approach – whereby one would continue to interpretthe Convention as it was understood by its drafters in 1950 – as this would lead toundesirable results. Such a ‘frozen’ attitude could not guarantee the continuedrelevance of the Convention as our societies develop. A dynamic approach wouldsurely be in keeping with the preamble of the Convention, which refers to ‘themaintenance and further realisation of human rights and fundamental freedoms’.And so Tyrer became the starting point for an impressive body of highly dynamiccase law. The case itself illustrates how the evolutive doctrine is applied. The Courtnoted that judicial corporal punishment – which was still practised in some countrieswhen the Convention was adopted – had been abolished throughout Europe. Thisnew consensus enabled the Court to qualify this type of punishment as ‘degrading’,and hence in breach of Article 3 ECHR, whereas it might have reached a differentconclusion in the 1950s.The Court’s evolutive approach may also extend to procedural matters and lead toinstitutional adaptation. When confronted with problems of a systemic nature, theCourt developed the practice of pilot judgments. And what about the countlessmeasures to cope with the caseload: don’t they reflect the living character of theConvention? These procedural innovations illustrate that the capacity to adapt iscrucial for the Court’s effectiveness – and, indeed, survival.It is important to keep this in mind, because the Convention’s environment does notjust offer opportunities for the Court to happily move on and enhance its standards.It also presents challenges. Indeed, today we are experiencing a genuine ‘climatechange’ that cannot be ignored. The Secretary-General of the Council of Europe, theParliamentary Assembly, the Commissioner for Human Rights, the VeniceCommission: they have all stated, and deplored, time and again, that the rule of lawis under pressure.So we face new ‘present-day conditions’, that may have a direct impact on the veryfoundations of the Council of Europe: human rights, democracy and the rule of law. Iam not saying that each and any of these developments involve violations of theConvention. This is for the Court to decide. But that is the very problem. Virtually allthe organs of the Council of Europe continue to express their views about measuresthat allegedly affect our common values. They are joined by the EuropeanCommission, the OSCE, the UN. But the voice that, if I may say so, matters most tous is rather muted. In the current rule of law debate we hear relatively little from the‘Conscience of Europe’ – the Court, that is.The ECHR at 70: A Living Instrument in Precarious Present-day Conditions - Leiden Law Bloghttps://leidenlawblog.nl/articles/the-echr-at-70-a-living-instrument-in-precarious-present-day-conditions[18-1-2021 15:49:22]But there is an urgent need to hear from the Court! There are tough debates in anumber of countries about the independence of the judiciary, the position of civilsociety, human rights defenders, and about academic freedom. Controversialmeasures are adopted, creating facts on the ground: systemic changes that – if foundto be in breach of the Convention – cannot easily be reversed. Justice delayed hasalways meant justice denied, but now the ramifications of delays may extend beyondthe individual applicant and affect the entire system for the domestic protection ofhuman rights. What does this mean for the Convention as a living instrument?The well-known case of Baka illustrates the point. The President of the HungarianSupreme Court complained about the premature termination of his mandate, whichoccurred in the context of a reorganisation of the judiciary. He brought hisapplication in March 2012 and obtained a favourable Grand Chamber judgment – inJune 2016. But this did not bring about his reinstatement in his original position: afait accompli had been created. Of course, this is inherent in the ex post reviewexercised by the Court. A violation of the right to life cannot be undone either.However, there is a difference: what happened to Mr Baka was, because of hisfunction, part of a much wider picture. The judiciary has a central place in the‘human rights ecosystem’. This means that a measure affecting the position of thejudiciary is necessarily capable of affecting the State’s institutional capacity to secureeffective protection of the rights and freedoms protected by the Convention. If in thiscontext a breach of the Convention occurs, one might say: an attack on one is anattack on all.To take another example: Every reader of this blog will be familiar with thewidespread concern that has been voiced, since the end of 2015, about the series ofmeasures concerning the position of the Polish judiciary. The government seeks todefend its reforms; critics claim that judicial independence is undermined. In thissituation, it is crucial to know the Court’s position on the various measures taken. Aspeedy and authoritative Court judgment is in the interest of all: the applicant whoclaims that his rights have been violated, and the respondent government whichclaims that its policies are fully justified. A speedy and authoritative judgmentprovides legal certainty and guidance.And it can be done! One only has to think of the speed and diligence with which thecase of Astradsson v. Iceland was dealt with. The case was communicated within amonth, a judgment was delivered well within a year. And so it is difficult for anoutsider to understand why this has not happened in the case of Poland. It is clearthat the Court depends on applications being lodged, but the fact remains that arelevant case, brought in January 2018, was only communicated in September 2019.The ECHR at 70: A Living Instrument in Precarious Present-day Conditions - Leiden Law Bloghttps://leidenlawblog.nl/articles/the-echr-at-70-a-living-instrument-in-precarious-present-day-conditions[18-1-2021 15:49:22]RULE OF LAW HUMAN RIGHTS EUROPEAN COURT OF HUMAN RIGHTSThat is 20 months. Of course, the Court faces an enormous caseload and, despite allefforts, it has a significant backlog. But that raises the question if the Court shouldnot reflect on its priorities. European judicial intervention is a scarce commodity,and it should be applied where and when it is most needed.Again, it is not my aim to express a substantive opinion on these cases, or to start adiscussion about the situation in several other countries that come to mind. Thepoint I wish to make is a different one. I would argue that in cases where it is stated,prima facie on arguable grounds, that the rule of law is under pressure, thatstructural changes affect judicial independence, and that as a result the integrity,indeed the very core of the system for the protection of human rights is at issue, theCourt ought to respond immediately. This entails to my mind that the Court shouldreview its priority policy as well as its practice concerning interim measures.In this respect, inspiration may be taken from the Court of Justice of the EuropeanUnion. The Luxembourg Court has had to rule on a whole series of cases involvingthe rule of law in various EU Member States. In doing so it has been in a position todevelop its case law considerably, and to influence the course of events.Space does not permit us to go into detail. But one element that stands out isprocedure. The Luxembourg Court has been able to play its role through the use ofexpedited procedures and, where necessary, the adoption of interim measures. Thereis nothing that could prevent the Strasbourg Court from doing exactly the samething.This year we will celebrate that the Convention was adopted 70 years ago. More than40 years ago, the Tyrer judgment was delivered. It opened the door for the Court torespond to the changing environment that it is part of. Many have applauded the‘living instrument’ doctrine and the benefits it has brought. Others are morecautious. But all will agree that the Court was set up as the ‘Conscience of Europe’. Itmust act decisively to protect what is really precious – decisively and quickly.This blog is based on Rick Lawson's contribution to the seminar “TheConvention as a Living Instrument at 70”, held in Strasbourg on 31January. The seminar was organised by the European Court of HumanRights on the occasion of the Opening of the Judicial Year 2020. 3  C O M M E N T SThe ECHR at 70: A Living Instrument in Precarious Present-day Conditions - Leiden Law Bloghttps://leidenlawblog.nl/articles/the-echr-at-70-a-living-instrument-in-precarious-present-day-conditions[18-1-2021 15:49:22]Rick Lawson · 11 months ago@Elroam - 2Would interim measures intervene too much with the sovereignty of a state? By signing andratifying a treaty, such as the ECHR, a state assumes international obligations; it can no longerinvoke its sovereignty as an argument not to comply with the treaty. Under the ECHR, Stateshave undertaken to secure the Convention's rights and freedoms to all (Art. 1), to respect theindependence of the courts (Art. 6), to offer effective domestic remedies (Art. 13), to allowindividuals to apply to the Court (Art. 34) and to accept the Court's judgments as binding (Art.46). Interim measures serve merely to preserve the integrity of this system (see the case ofMamatkulov v. Turkey). Clearly cases may raise sensitive issues, and it is obvious that the Courtshould use its power to indicate interim measures carefully. I am not advocating their use inconnection to freedom of speech or climate change. My proposal relates only to complaintsthat arguably raise serious concerns about a State's continued institutional capacity to securehuman rights through independent courts.·  ReplyRick Lawson · 11 months ago@ElroamThank you for your comment. Let me try to address the questions that you raise. Sure, interimmeasures might have to deal with legislation. That in itself is not necessarily an obstacle. Thejudgment on the merits would also deal with legislation, and in fact, that is what happens moreoften in cases before the Strasbourg Court. Sometimes the Court will rule on theimplementation of a law. sometimes the qThe interim measure would merely have the effect of'freezing' the situation, so as to allow the Court to give a meaningful judgment. At the end ofthe blog I refer to the practice of the EU Court of Justice. If you follow the link in thatparagraph, you get to that Court's judgment in case C‑619/18. In para's 18-22 you will find thatthis Court, too, used interim measures to avoid a situation where it would be confronted with afait accompli, and possibly irreversible damage, before it had rendered judgment.·  ReplyElroam · 11 months agoImportant indeed. But we couldn't understand, such interim measures, would have to deal withlegislation also ( typically). Suppose, reforms in the judiciary, typically it is implemented throughlegislation. Now, it is one thing to intervene in certain case, where the law of certain state, hasbeen wrongly implied. Yet, another thing, to freeze legislation proceedings, until ruled on merits.Isn't it too far in terms of intervention in one sovereignty of one state ? Let alone beforeenacted.By the way, may touch every aspect of life then: freedom of speech, climate change, family,etc.... Can generate massive interventions, in legislation. The ECHR at 70: A Living Instrument in Precarious Present-day Conditions - Leiden Law Bloghttps://leidenlawblog.nl/articles/the-echr-at-70-a-living-instrument-in-precarious-present-day-conditions[18-1-2021 15:49:22]Register · Forgot password?Thanks·  ReplyAdd a comment Remember me        R E L A T E DThe EU, Poland and the rule of law: writing a newchapterThe ECHR at 70: A Living Instrument in Precarious Present-day Conditions - Leiden Law Bloghttps://leidenlawblog.nl/articles/the-echr-at-70-a-living-instrument-in-precarious-present-day-conditions[18-1-2021 15:49:22]As the Council starts to discuss the rule of law in Poland, the EU enters a new stageas a guardian of human rights in its member states. Some observers have claimedthat the Commission acted too late and did too little, but this criticism is undeserved.Rick Lawson • June 25, 2018 • 1 commentDisenfranchising criminals? The Right to Vote and theEuropean Court of Human RightsIn Kulinski and Sabev v. Bulgaria, the ECtHR heard complaints aboutinterferences with the right to vote in prison. Its decision seems problematic intwo ways and illustrates how States at times use criminal law to disenfranchiseconvicts.Patrick van Berlo • June 24, 2017The ECHR at 70: A Living Instrument in Precarious Present-day Conditions - Leiden Law Bloghttps://leidenlawblog.nl/articles/the-echr-at-70-a-living-instrument-in-precarious-present-day-conditions[18-1-2021 15:49:22]Stay Connected        MoreLeiden Law SchoolLeiden UniversityNJBlogPubliekrecht en politiekJuridisch PAOInfoDisclaimerFrance and the state of emergency: moving in the wrongdirectionAfter the 2015 terrorist attacks the French government initiated numerous legislativeprojects, most notably the state of emergency. What impact have these legal changeshad on French citizens? How do they relate to human rights and the rule of law?Tom Bollemeijer and Friso van de Pol • May 09, 2016 • 3 comments

The ECHR at 70: A Living Instrument in Precarious Present-day Conditions

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The ECHR at 70: A Living Instrument in Precarious Present-day Conditions

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