December 3, 2020
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 practsing 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/Herzegowina, 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.