18.04.2012

OPENING STATEMENT

BY M. JEAN-CLAUDE MIGNON,

PRESIDENT OF THE PARLIAMENTARY ASSEMBLY

ON THE OCCASION OF THE BRIGHTON CONFERENCE

(Brighton, United Kingdom, Thursday 19 April 2012)

Ladies and Gentlemen,

I thank the UK Chairmanship for giving us a further opportunity, following the conferences held in Interlaken and Izmir, to discuss the current situation and the future of the European Court of Human Rights.

At the beginnings of the European Convention on Human Rights there was no binding right to lodge individual applications, nor even a Court, since it was established in 1959. However, the Convention system gradually gathered momentum, leading to the outcome with which we are familiar today. A Court which has greatly advanced human rights in Europe and elsewhere. But also a Court inundated by the inflow of applications. It is said to be a victim of its success. Yet can we really talk of "success" in these circumstances? Is the Court not rather a victim of deficiencies at the national level? We should not overlook the fact that about half of the cases pending before the Court concern only four respondent States, that just one of these States accounts for 27% of all applications and that 80% of applications concern just ten States, out of a total of 47.

These statistics must give us pause for thought when we consider how to reinforce the effectiveness of the Convention, including the authority of the Court. Not so as to stigmatise any particular State, but with a view to assessing the tangible consequences of given reform measures.

First there is the issue of subsidiarity. One can but be in favour if subsidiarity means that the Court is not a fourth tier of justice and that, in principle, it is for the States to apply the Court's case-law and to draw the necessary conclusions from it, possibly by changing their legislation and practice.

However, the limits to this reinforcement of subsidiarity lie in the limitations of the national legal systems themselves. Let us not inverse the situation. It is true that the States parties are in principle best able to assess the necessity and the proportionality of the specific measures they have to take. However, in a way we also asked the Court, particularly following the enlargement of the Council of Europe, to make good the weaknesses of a number of member States with regard to the rule of law.

It is therefore the Court that must have the last word in deciding how to interpret the Convention in each case brought before it.

This case-law system sometimes encounters very strong opposition at national level, as was recently the case in the United Kingdom or in France on the questions of the status of members of the prosecution service, police custody and prisoners' right to vote. A fine balance has to be struck, in so far as the Court is sometimes accused of usurping a legislative role, and it does sometimes assume that role to a certain extent. However, could things be any different? The preamble to the Convention refers not only to the maintenance but also to the further realisation of human rights, which allows the Court to interpret the Convention and its protocols as a "living instrument", "in the light of present-day conditions".

It goes without saying that, in exchange, the Court must exercise a degree of self-restraint and refrain from interfering in matters which there is no vital need to address and which closely concern national traditions. The case concerning the display of crucifixes in classrooms, in which the Grand Chamber took account of the situation's complexity, is a good example. Whenever social issues are involved, only those values that command a broad consensus should be set up as fundamental principles.

The Court must also make its case-law as clear and coherent as possible. Any improvements to its Hudoc database could but have a positive impact in terms of clarification for users. The translation and dissemination of the Court's case-law is also of extreme importance, and indeed often absolutely essential to permit national courts to take it into account.

One comment I would make in a strictly personal capacity is that the Court has no advocates general, which detracts from the emergence of a clear public doctrine. Budgetary constraints do not permit the creation of such offices. Despite that, I propose that we reflect on means of making the Court's case-law better known, better understood and hence better applied.

One input from this conference will be enhanced recognition of the role of the Parliamentary Assembly of the Council of Europe and of the national parliaments.

The election of the Court's judges by the Assembly is of vital importance, as the Court's authority naturally depends on the stature of its members and the quality of their decisions. It is important above all this year, when a very large number of the judges will be replaced. The initiatives taken by the Parliamentary Assembly, including the interviews with all candidates now conducted by its Sub-Committee on the Election of Judges, and by the Committee of Ministers, with the recent adoption of guidelines on the qualifications required of candidates, have already improved the process and will allow further improvements in future, a fact that I welcome.

However, that is not the only parliamentary contribution to the implementation of the Convention and the functioning of the Court. It is indeed important that national parliaments systematically check that draft legislation is compatible with the Convention, that they closely monitor the action taken to execute judgments against their States and that they ensure that changes to national legislation are in line with the measures recommended by the Court.

Execution of judgments is still a major weak point. The Committee of Ministers has reformed its procedures to make them more effective. Our Assembly very closely monitors the situation regarding execution of judgments in the countries with the greatest shortcomings in this field. A number of national parliaments have also adopted a dynamic approach in these matters.

I also welcome the exemplary work done by the Parliamentary Assembly's Monitoring Committee, which verifies that states are honouring the commitments they entered into upon acceding to the Council of Europe. However, the Organisation also has a whole series of other mechanisms to monitor respect for human rights, ranging from the Venice Commission to the European Committee for the Prevention of Torture (the CPT), via ECRI (the European Commission against Racism and Intolerance), to mention but a few. Let us make the best possible use of these mechanisms.

I wish to conclude by making a general observation and a suggestion as to what the Brighton Declaration should say as a matter of priority.

First the observation: In a recent report our Committee on Legal Affairs disclosed that the annual cost, within the Council of Europe’s budget, of hiring a judge at the European Court of Human Rights is higher than the annual contribution made by 15 member States. In other words, the contribution paid by these 15 States does not even suffice to cover the cost of their own judge in Strasbourg.

Second my suggestion: Let us focus our efforts on those areas where the needs are most strident. Let me explain. We should not focus solely on the reform of the Court. It is regrettable that the Court is obliged to waste time and effort hearing repetitive applications against "persistent defaulters". However, during a recent visit to Moldova I received confirmation that the time taken to deal with these repetitive applications has most unfortunate human consequences. Similarly, it is not acceptable that the Committee of Ministers continues to be confronted with unacceptable delays in the execution of judgments handed down by the Court. The Convention system as a whole is in difficulty. The States must ensure that the Court continues to fulfil its primary task as the guarantor of human rights standards in Europe. They must first and foremost guarantee the effective protection of human rights at national level.

Only by enabling the Council of Europe, through its political action, to ensure compliance with the values and standards States undertake to support as members of our Organisation will we make it possible for the Court to play its role to the full.