‘The Convention under threat’ (Secretary General of the CoE)

SG_43833_06‘… despite our many reforms to improve our Convention system over recent years, it faces a growing political threat’

– these are the words of the Council of Europe’s Secretary General, Mr Thorbjørn Jagland, in a speech delivered a week or so ago to the Parliamentary Assembly of the CoE.

The speech referred to the storm clouds that seem to be gathering around the Convention based on a mood of national ‘push-back’, if not downright resistance to the Convention’s implementation – in some States at least. And if the Secretary General considered it appropriate to devote a key part of this speech to this, then we do need to sit up and take notice.

I wanted to draw attention to this speech, which does not seem to have attracted much attention in media circles (as far as I am aware) and so set out verbatim passages below. The Secretary General refers to the UK, Russia, Norway, Switzerland and Azerbaijan (see below).

In the meantime, the European Court of Human Rights has recently published its annual statistics for 2015. These are available on the court’s website, where details of the annual press conference held by the Court can also be found. Thank you to the CoE’s media office for sending through these (in fact, unofficial) points to me.

  • In relation to population size, the countries with the lowest number of cases allocated to a judicial formation in 2015 were Ireland (0.04 per 10,000 people), Denmark (0.08) and the UK (0.09); the average number of applications allocated per 10,000 inhabitants was 0.49
  • The countries with the highest number of judgments finding at least one violation were the Russian Federation (109), Turkey (79), Romania (72), Ukraine (50) and Greece (43)
  • There were 13 judgments concerning the UK in 2015 (1.6% of the total for the 47 Council of Europe member states); of these, 4 judgments found at least one violation of the convention and 9 found no violation
  • There are approximately 256 pending cases relating to the UK, which is around 0.4% of the total number of pending cases.
  • The total number of applications pending before a judicial formation at the end of 2015 was 64,850, a decrease of 7% over the year and more than 50% from a highpoint of 151,600 in 2011; this is largely due to new working methods introduced by the court

The last figures allude to the reform process that the Secretary General refers to in the first part of the speech as extracted below, and the enormous efforts that the Court has gone to in order to start to get its caseload under some control (over 800,000 people are potentially able to apply to it, across the 47 member States to the Convention).

That reform process has proceeded under the banner of ‘shared responsibility’, i.e. the responsibilities that the States and the Court share for the Convention’s future. The Convention’s Preamble makes reference to the States’ desire to secure a regime for the ‘collective enforcement’ of Convention rights. Here we see that, in the final analysis, there is no getting away from the fact that the Convention’s future is dependent on the shared/ collective political will of the States to support it – against the backdrop, the Secretary general’s speech is, it seems, and as he puts it, ‘a call for urgency and leadership’.

The Convention under threat

Yet, despite all of this, despite our many reforms to improve our Convention system over recent years, it faces a growing political threat.

There have always been those who challenge the authority of international institutions, but these forces have slipped into the mainstream – and they are gaining traction. When we join the dots, the danger to our Convention system begins to feel very real indeed.

In the UK, we have the ongoing debate over the Court’s judgment on prisoner voting. I appreciate the Government entering into an enhanced dialogue with us, to find a way forward. I also understand that some judgments take time to implement.

But many are watching the UK, and I am very concerned by the argument – which I hear more and more – that Parliament’s previous rejection of a change to the law must, automatically, be the final word.

In the Russian Federation, according to a new law, if the authorities believe that there is a conflict between Russia’s constitution and a judgment of an international court they will be able to request an opinion of the Constitutional Court to determine the compatibility. This raises the possibility of the Constitutional Court declaring that a judgment from our own Court, the European Court of Human Rights, cannot be applied in Russia.

It remains to be seen what will happen, if and when such a conflict arises and it will now be up to the Constitutional Court to ensure respect for the Convention, if it is called upon to act under the new provisions, but it would be far better if this uncertainty had not arisen at all.

In Switzerland, there are now enough signatures on a petition to trigger a referendum on the role of international treaties versus national laws.

In Norway, the Parliament has recently adopted a resolution which says that international conventions have to be adapted to so-called “new realities”, referring to the refugee crisis, as though treaties like the Geneva Convention on refugees and the European Convention on Human Rights were written for sunny days, when, in fact, they were designed precisely to protect individual rights in difficult times like these.

And we see a number of instances of states deliberately flouting their obligations. The one I would like to highlight is the ongoing detention of the well-known intellectual and activist, Ilgar Mammadov, in Azerbaijan. Mr Mammadov has been in prison for two years, where there are strong indications that he has faced threats and ill-treatment.

He is not the only person in Europe who is locked up when they shouldn’t be. But he is the only person who remains behind bars in spite of the fact that the Strasbourg Court, the highest legal authority on the continent, relying on the rarely used Article 18, concluded that the courts and prosecution had abused their power to engage proceedings against him. In other words, politically motivated evidence was used against him.

In the few other cases where the Strasbourg Court concluded a violation of Article 18, the applicants were either rapidly released, acquitted or their conviction was annulled. In this case nothing has been done. The Azerbaijani authorities have resisted repeated calls from myself, this Assembly and the Human Rights Commissioner to free Ilgar Mammadov. In such a situation I am entitled to take extraordinary measures, according to Article 52 of the Convention, which I am invoking, for the first time since I became Secretary General, in order to send a special mission directly into the country to pursue Mr Mammadov’s release. Again: we cannot have people in prison on the European continent, whom our highest court has said are there on false ground. This is the bottom line.

These various developments, taken together, are cause for real concern. The Convention system – for which all 47 member states share responsibility – hinges on Article 46, which says that the contracting parties shall undertake to abide by the rulings of the Court. When individual states ignore their obligations, or when there are attempts to pick and choose which rules should be followed and which should not, it pulls at the very fabric of the Convention, and if it begins to unravel, it will be very difficult to stop.

Having experienced – particularly in Europe – the worst excesses of unrestrained state power, our nations have agreed to a set of shared legal constraints because it makes all of us stronger and safer overall. This logic still prevails. So my message today is a call for urgency and leadership. The Parliamentary Assembly needs no lectures in asserting itself. I am extremely grateful for the strong and principled positions you regularly take. But today I speak to you as individual parliamentarians, too. I ask you to go home and be louder than ever in defending Europe’s human rights architecture.

Priorities in the year ahead

I have taken the same message to the Committee of Ministers and, for my part, I will continue leading the Council of Europe down the reform path so that there can be no doubt about the difference we make.

The speech continues on – see here.

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