The European Convention on the Protection of Human Rights and Fundamental Freedoms – Seventy Years Onwards
Lawyer, LL.M. (European Law – University of Leicester), former Head of Division in the European Court of Human Rights, former adviser to the Human Rights Advisory Panel of the United Nations mission to Kosovo, former associate of the Team for the Improvement of the Functioning of the Judiciary of the Association of Polish Judges “Iustitia”
Lawyer, associate of the “Empowering Children” Foundation. Participant of training on women’s rights organized by the Bulgarian Gender Research Foundation in cooperation with attorneys from Minnesota, TRACHILD – program on the representation of children in court proceedings. Member of the Committee for Contact with Local Authorities, NGO and Human Rights at the District Chamber of Legal Advisers in Gdańsk.
On 4 November 1950 the European Convention on the Protection of Human Rights and Fundamental Freedoms was adopted. Seventy years have passed since that momentous date. The Convention sets forth a number of fundamental rights and freedoms (right to life, prohibition of torture, prohibition of slavery and forced labour, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, right to marry, right to an effective remedy, prohibition of discrimination). It also created an enforcement mechanism : each and every person under jurisdiction of states parties can bring an individual complaint about a breach of her or his rights before the European Court of Human Rights based in Strasbourg, France.
Since 1950 Europe has changed beyond recognition and so has the legal environment within which each and every practicing lawyer in Europe works and thinks about law. A question naturally arises in this connection what is the Convention’s relevance today to practicing lawyers’ everyday work and to their involvement in public matters.
This anniversary coincides with the worldwide pandemics of COVID 19. The pandemics affects – and not for the better – the way in which human rights, including those protected by the Convention, can be exercised, enjoyed and vindicated. It is the responsibility of lawyers to scrutinise the manner in which this calamity restricts individual rights and to react where necessary.
What do we owe as lawyers to the Convention ? What is its significance today for citizens of Europe in turmoil, to the troubled societies and political systems in flux?
It came as a bad surprise to many, including the legal community in Europe, that values and fundamental ideas which the Convention embodies and protects are currently under attack in many countries. Indeed, the « common heritage of political traditions, ideals, freedom and the rule of law », referred to in the Preamble to the Convention, is being either denigrated by public authorities, or openly disregarded in the application of laws, or both. The very notion of « effective political democracy » that the Preamble reaffirms is in certain countries reduced to mere majority rule, without proper regard to division of powers, checks and balances and the situation of political minority. Worse, there are sad examples of overt and unashamed violations of human rights in certain countries.
In this context the Convention and human rights can no longer be taken for granted. « Observance and common understanding » of human rights are not a given we have somewhat blithely assumed during the last thirty years to serve as a bottom line for the actions of all public authorities. Hence, the obligations, attitudes and emotions of the legal community towards the Convention should evolve in the light of recent developments. What are those obligations ?
In our view, the are the following :
RELEVANCE AND RELIANCE
Firstly, to ensure that practicing lawyers are well aware of the Convention’s – and, broadly, human rights – significance to their everyday practice. The Strasbourg Court is not a far away institution interested in lofty ideas and grandstanding, unrelated to the realities of legal practices in big and small cities in Hungary, Poland, France or Spain. Human rights are relevant to our clients’ cases before the each and every court in Europe. Be it in a civil case where the essence of access to court is restricted by unduly high court fee, or in a criminal case where a lawyer cannot have access to a freshly detained person who is being questioned by the police in lawyer’s absence, or in an administrative case concerning the amount of compensation to be paid by the state for expropriation of property – all those apparently run- of- the-mill situations known to every lawyer touch upon the rights guaranteed by the Convention. It is the lawyer’s responsibility to raise human right complaints before the domestic courts all the way to the highest national court ; also to comply with an obligation to exhaust domestic remedies before bringing an application about a breach of individual rights to Strasbourg. In other words, it is the lawyer’s obligation to rely on and to invoke the Convention rights and guarantees in our everyday practice ; not necessarily in order to bring the case to Strasbourg, but also to remind the courts and all public authorities that human rights are normal part of the legal landscape in which they operate.
In order to be able to do so, human rights education and knowledge of the Court’s case law must be a natural part of legal training, both this leading to access to legal professions and the ongoing one. The Court’s case-law is vast, the Convention is a living instrument adjusting itself to changing realities of modern life by way of the Court’s decisions and judgments. It is our responsibility to follow it, to make it a part of our legal thinking and, importantly, to learn and teach within the profession how the Convention standards are to be made operational in our country, in the context of our legal systems and in cases where we represent clients.
THE CONVENTION AS YARDSTICK
In the context of public life it is a major task of the professional associations to be vigilant and able to assess new legislation, parliamentary bills and practice of the public authorities from the Convention perspective. Does a new statute respect the Convention standards ? Will a Bill debated by national parliament enhance human rights or rather shamelessly breach them ? Do public authorities willing and able to assess human rights consequences of legislation they envisage ? Does the established practice of domestic courts, prosecutors, police and public administration take heed of the Convention standards ? Do we as associations of legal professionals have enough resources to carry out such assessment ? Do we have human rights bodies within our associations which are tasked with it ? Is the voice of such bodies heard within our professional associations ? Do lawyers’ associations take position and voice their concerns where human rights are breached or disregarded by the public authorities ? Of course the position and importance of professional associations of lawyers in public life will vary from country to country depending on their seriousness, longevity, national legal tradition – and by willingness, or lack of it, they display to take part in public life. It is for us lawyers to make our professional associations actors of public and political life instead of mere trade unions concerned only with defence of our professional interests. To sum up, the Convention, the Strasbourg Court’s case law and, more broadly, human rights are a yardstick by which public policies, laws and public governance should be measured – and legal professions should be willing and able to take them to task.
THE CONVENTION IN THE COURTS
« Dialogue between the European Court of Human Rights and the national judicial systems is fundamental to the Convention system. » said Robert Spano, the Court’s President elected in 2020, in his recent message to the Superior Courts Network, set up by the Court in 2015. The task of the Network is to ensure the effective exchange of information between the Court and the national courts belonging to the Network, on the case-law of the Court, Convention law and practice and the domestic law of States whose superior courts are members of the Network.
Indeed, the national courts are primary actors who have a central role to play, implementing the principles and values of the European Convention. It is for the courts to apply the case-law of the Court in everyday judicial practice ; not only superior courts but for each and every court in Europe. It is the responsibility of judicial systems to make the Convention a part and parcel of judicial training. The attitude of the courts to lawyers invoking the Convention and the Court’s case-law in their submissions made on behalf of the parties will certainly vary, depending on the substance of the case, on the clarity of the argument made by the party, on the relevance of the human rights element to the subject matter of the case. However, it also happens that the courts routinely disregard or lend a deaf ear to arguments based on the Convention, either because they do not understand them or because they consider them irrelevant or because they are of the view that they are not obliged to apply the Convention in their decisions. It falls to the lawyers to keep the courts awake to the Convention as living and binding legal reality.
We can and should think of the ways in which strategic legislation techniques are to be used in order to correct discrepancies between our national legal systems and the Convention standards. A finding of a violation of the Convention rights by the Strasbourg Court gives rise, on the one hand, to an obligation on the part of the respondent state to comply with individual measures provided for by that judgment. Most often, it would entail payment of the amount of just satisfaction awarded by the Court. On the other hand, the judgment imposes on a respondent state an obligation to amend domestic laws or practices in which the violation originated. Hence, the Convention system provides for a mechanism by which national laws incompatible with human rights can eventually be changed. On the national level, some serious thinking should be given by legal assiciations on ways and means of identifying problems which raise an issue as to their compatibility with the Convention. Legal community should not only be aware of such problems, but also actively be on the lookout for and search live cases before domestic courts where such problems are involved. Such cases, if lost by the party to it before national courts, can further be brought before the Strasbourg Court with a view to obtaining a judgment to the advantage of an applicant whose rights have been violated on the domestic level. Ideally, some coordination in identification of such problems, finding appropriate leading cases and encouraging parties to it to bring them before the European Court of Human Rights is certainly called for within legal professions. It is of course in the nature of things that representing the applicants before this Court in cases which can be vehicles for legal reform is of essence.
It is common knowledge that the Strasbourg Court has a very heavy docket. Currently approximately 60 thousand cases are pending before it. It has also been often criticised for the time it takes the Court to rule on an individual case. Quite apart from the reasons of such length and from various and well-known measures which have been taken over the last twenty or so years to make the Court act more speedily, it is a lawyer’s professional and ethical obligation to support her or his client who might get discouraged and disappointed by the duration of the proceedings. It should be borne in mind that the case most often than not touches on issues of vital importance to the client, not only legal one, but oftentimes also emotional or even existential. This can be said in particular about cases touching on matters of private and family law, children access cases, cases relating to personal identity, names, gender or cases concerning medical or health issues. There’s more to those cases than just interesting legal issue ; there’s also a human life story against which such issue has arisen. It is the lawyer’s responsibility to convince the client that his or her case is worth being taken to the Strasbourg Court and to accompany the applicant throughout the long legal life of the case, both in legal and sometimes also emotional terms ; it is for the lawyer to demonstrate perseverance and courage and to hold the client’s hand, so to speak, until the end of the case, in the hope that the outcome will be to the client’s favour.
EDUCATION OF SOCIETY AT LARGE
Against the background of COVID 19 and the rise of populisms in a number of countries it is important that lawyers educate the society at large. Human rights are not luxury that can be dispensed with in difficult times. The Convention is there to protect rights which way too often are currently presented to the public as impediments to various government policies, allegedly designed to combat the pandemics and to enhance security. It is for the lawyers to remind the general public the substantive content of rights guaranteed by the Convention and to alert it to dangers of shortcuts taken or envisaged by public authorities. Failure to do so may contribute to rendering rights guaranteed by the Convention and interpreted by the Strasbourg Court toothless and regarded by the powers that be as mere lip service of no relevance to political realities and to everyday life. Worse ; certain governments and public officials have adopted and encouraged hate speech against marginalised groups, against LGBT people or migrants, women or people of minority religions, or against citizens not sharing the views of the ruling parliamentary majorities in order to rule by fear.
It is vital to have the best and brightest human rights lawyers sitting on the Strasbourg bench. Currently, terms of office of nine judges (Bosnia/Herzegovina, Moldova, Croatia, Russia, Belgium, Poland, Czech Republic, Greece and Switzerland) have either come to end or will end shortly, in 2021. Either relevant domestic procedures are under way in order to form lists of three candidates ; one of them will later be elevated to this judicial post by a vote in the Parliamentary Assembly of the Council of Europe. Legal communities are well placed to monitor the national procedures and to see to it that they are fair and transparent. The Convention itself does not provide for any specific manner in which the candidates should be selected on the national level, but human rights lawyers and legal associations should insist that the involvement of the civil society at large, the academia, the professional associations and also the parliamentary bodies in this national selection procedures is significant. The decisions in this respect should not be made behind closed doors of ministerial offices. It is obvious that the Strasbourg judge mustn’t be a representative of state, but a human rights judge, committed, hard working and respected by his or her peers in the national legal community – but it always serves a purpose to publicly repeat this apparent platitude.
Human rights go hand in hand with rule of law; they are intrinsically intertwined. Hence, the community of practicing lawyers in Poland regard certain acts and declarations of the political powers with mounting concern. The authority of judicial institutions has been undermined or compromised, the election laws have been amended so as to weaken guarantees of fair elections, women’s rights, especially reproductive rights, are under attack, statutes are adopted with unseemly haste, without proper parliamentary debate ; in short, human rights are in danger.
We are certainly living in interesting times. Human rights are not something which has been safely acquired and irrevocably won. We cannot be complacent about them. Let us have a good rest during the coming festive season – and let’s come back to work full of new energy in the defence of human rights and rule of law.
The European Convention on Human Rights – vivid and powerful legal instrument?
Ph. D. Marzena Świstak
Department of IT Law and Legal Professions, Faculty of Law and Administration at the Maria Curie–Skłodowska University in Lublin, Poland. Lawyer.
The Convention for the Protection of Human Rights and Fundamental Freedoms, customarily referred to as the European Convention on Human Rights, was opened for signature on 4 November 1950. Therefore, this year there is a special moment to underline the significant role of that international regulation. In adopting the text of the Convention, the Member States of the Council of Europe expressed a common heritage of political ideals and traditions, respect for freedom and the rule of law, but also the respect for the rights expressed in the Convention. The proper understanding and application of the Convention by States Parties was to be ensured by the European Court of Human Rights (established in 1959). The Republic of Poland signed the Convention on 26 November 1993 and ratified it on 19 January 1993. From 1 may 1993, it also recognized the jurisdiction of the European Court of Human Rights.
By acceding to the Convention, each country confirms the will to ensure, in real terms, the fundamental rights and freedoms expressed in it. The aforementioned are considered as the foundation of justice and peace in Europe. The European Convention on Human Rights has become the most important Treaty in the Council of Europe acquis (now there are 47 States as parties to that regulation). The European Convention on Human Rights has played an important role in the development and awareness of human rights in Europe.
The European Convention on Human Rights is a unique human rights protection system at European and global level based on an individual complaint mechanism to the European Court of Human Rights And to supervise the implementation of its decisions by the Committee of Ministers of the Council of Europe. It is often the last or even the only instance of appeal for people whose rights have been restricted or even breached. The governments of individual States Parties to the Convention have the duty (and even the right) to appoint candidates for the judiciary among the highest moral level and recognized uncontested legal qualifications. They shall also ensure that the national legal system is functioning in a manner that respects the values and principles of the Convention. An individual complaint to the Court should be considered as a last resort. What is more, if it has been already submitted and, as a consequence, resulted in a judgment, the State is obliged to implement it immediately and fully.
From the perspective of almost thirty years, there is no doubt that participation in the European Convention on Human Rights has affected (and still affects) a fundamental change also in the Polish legal order. This led e.g. to eliminate institutions and practices that are incompatible with the values of the Convention. It was also an impetus for national legislators to introduce solutions resulting from the authoritative interpretation of the Convention (e.g. the provisions on zabazan claims) and fundamentally influenced the Polish courts and tribunals’ judicial trend. Between 1993 and 2015, the European Convention was a crucial, international signpost of the right direction for the evolution of the regime of the Republic of Poland toward a model of the rule of law.
Under the Article 9 of the Polish Constitution, Polish public authorities are bound by judgments of courts or decisions of other international or supranational bodies. In practice, this problem is primarily a matter for the rulings of the European Court of Human Rights. Although such judgments do not directly bind the authorities and they do not directly shape the legal situation of persons, for example, they do not cause the repeal of acts of national law which have infringed human rights. However, the statements in the European Court of Human Rights rulings indicating violations of the Convention mean that the national authorities acted unlawfully. These authorities may not contest the decision of the European Court of Human Rights that the infringement existed. The judgment requires the State to take action to restore legal compliance. However, in situations where international law standards are directly applied, this application should take into account the importance (interpretation) of the international bodies legal analysis. The consequences of the statement of an infringement of personal rights create certain obligations between the victim and the country which committed the infringement. It is understood that the issuing of a judgment declaring an infringement of the Convention constitutes a “right of redress”. Furthermore, the State should take all necessary steps to eliminate the effects of the infringement has been found and restore the situation. Nevertheless it should be posed that the mere fact of finding an infringement of the Convention does not create an obligation to take precise action. Member States have the freedom to choose the way to redress the judgment, which cannot be taken over by the European Court of Human Rights. It is not possible to order any State to amend its internal legislation. The Convention does not, however, impose any obligation to resume legal proceedings which have become final. Overwise, it would entail a significant reduction of a feeling of legal certainty. The need to prevent further infringements, must not involve modification of a specific resolution already issued, but may consist the impetus to undertake specific steps to avoid similar, wrong actions in the future. The inability to resume legal proceedings should not be understood as the ignorance by a State Party to the Convention.
The significance of the Convention is not to be underestimated. It is not only the voice of history. The most influential framework of rights that should be protected is under the regulation of the Convention. Just name the Article 6 that provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter). The majority of convention violations that the court finds today are excessive delays, in violation of the “reasonable time” requirement, in civil and criminal proceedings before national courts. Another significant set of violations concerns the “confrontation clause” of Article 6 (e.g. the right to examine witnesses or have them examined).
Nevertheless, there are many protection areas, that may be mentioned also as crucial and actual at the moment. It is enough to mention academic freedom requirement that should be guaranteed in the democratic society. Though academic freedom is not explicitly provided for in the European Convention on Human Rights, the European Court of Human Rights has brought issues regarding academic freedom within the ambit of the Convention. It tends to do so under Article 10, which guarantees freedom of expression. What is more, even in the Polish legal system recently there have been undertaken legislative measured within the area mentioned. The statutory draft of “package of academic freedom” should be mentioned. The aforementioned shows that the Convention’s regulations are constantly vivid in the legal area. It is not a “distant regulation”, but a fundamental framework that may be used as a flexible instrument of human rights’ protection.