The European Convention on Human Rights as a tool for justice reform1
by Holger Hembach
Summary:
The European Convention on Human Rights (ECHR) was not designed as a tool for justice
reform. It reflected the legal traditions and values of the states comprising the Council of
Europe when the Convention was drafted. When it entered into force, the states acceding to
it generally considered their respective legal systems to be able to secure the rights
enshrined in the Convention. For the ‘new states’ ratifying the ECHR after the Soviet Union
and Yugoslavia fell apart, the starting position was different. Their legal systems had been
forged by different values and political systems. Against this background, the ECHR may also
serve as a tool for justice reform. Inter alia, it may fulfill three important functions:
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Serve as a tool for the identification of shortcomings
Provide guidance as to the objective of reform
Serve as an argument to overcome conservative forces
1. Introduction
The European Convention on Human Rights was not conceived as a tool for justice reform. It
was drafted in the wake of the Second World War, in an attempt to create a moral basis for
the cohabitation of peoples in Europe and to build a bulwark against totalitarianism. Until
then, the protection of human rights had been considered an internal affair of states; the
idea of international supervision of the observance human rights standards was rejected as
infringing the sovereignty of states. Yet the atrocities committed in Nazi-Germany and the
failure of municipal mechanisms to safeguard fundamental rights and freedoms precipitated
a broad consensus that the protection of human rights had to be taken on the international
plane.
In 1948, the Universal Declaration of Human Rights was adopted. At the same time, in
Europe a movement formed which advocated for the creation of a treaty enshrining
fundamental human rights standards for the continent. Leading politicians, historians,
lawyers and members of civil society attended a conference in The Hague to discuss
possibilities to create some form of political union between European states. The Hague
Conference resulted in a ‘Message to Europeans’, which called, inter alia, for a charter of
human rights guaranteeing liberty of thought, assembly and expression’.
1
The article was published in a publication on the occasion of the 20 anniversary of the Prosecutor General’s
Office of the Republic of Moldova in 2012
Holger Hembach, published on: http://echr-online.info
In 1949, the Council of Europe was founded. Its creation was to a large extent due to the
efforts of the ‘European Movement’, which had been established at the Hague Conference.
The drafting of the European Convention on Human Rights, which had been called for in the
‘Message to Europeans’ proceeded under the auspices of the Council of Europe. The initial
concept of the Convention was that of a warning mechanism ensuring that attempts to
abolish basic democratic rights would not remain unnoticed. The possibility to turn to an
international court endowed with the authority to supervise the observance of the
Convention would secure international attention for human rights violations which might
pave the way to a totalitarian state. Speaking before the Consultative Assembly of the
Council of Europe, the former French Minister Pierre-Henri Teitgen, one of the fathers of the
European Convention on Human Rights, said: ‘Democracies do not become Nazi countries in
one day….Evil progresses cunningly, with a minority operating….A conscience must exist
somewhere which will sound the alarm to the minds of a nation …’2. The quote shows that
the Convention aimed at maintaining the status quo and safeguarding the existing standard
of human rights protection rather than at developing them further. At an early stage of the
drafting a provision providing that all states were to guarantee the enjoyment of the
fundamental rights and freedoms already entrenched in their domestic frameworks. Even
though this provision was jettisoned in the course of the drafting process and the ECHR
evolved beyond a warning mechanism, the underlying assumption remained the same: The
Convention was to reflect the common cultural heritage, legal traditions and values of
Europe. The rights it contained were commonly recognized and believed to be already
effective in the Council of Europe member states. Accordingly, when the European Court of
Human Rights was established, the contracting states in general did not expect judgments
against them. Corresponding to a general principle of international law, domestic remedies
had to be exhausted and states had to be given the opportunity to set matters straight in
their own jurisdiction before the European Court of Human Rights could be involved 3. The
member states regarded their court and administration system as perfectly able to ensure
observance of the Convention
Following the political upheaval in Europe and the dismantling of the Soviet Union and
Yugoslavia, many of the ‘new born’ states sought European integration and acceded to the
ECHR. For a large portion of these states, the starting position as regards the capability of
their system to protect human rights was different. The ECHR did not reflect their legal
traditions and the values underlying the Convention were not entrenched to the full extent
in their laws. Their legal systems had been subjected to political influence and shaped by
ideas of individual freedom very different from those enshrined in the Convention. Forged
by a communist past, they had to apply the ECHR, which had been designed as ‘a bulwark
against communism’. Their justice systems had to be reformed so as to comply with the
Convention. In this situation, the ECHR proved useful not only as an instrument of human
2
3
Quoted after Ed Bates, The evolution of the European Convention on Human Rights, p. 44
ECtHR, Fressoz and Roire v France, judgment of 21 January 1999 para 37
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rights protection but also as a guideline for capacity building and justice reform. In the
context of reforming legal systems, the ECHR can serve many functions. Three important
ones are highlighted below.
2. Analysis of deficiencies
One of the first steps to take when the need to reform a justice system arises is to analyze
the existing situation carefully. The ECHR and the jurisdiction of the ECtHR can serve as
useful tools to identify shortcomings and deficiencies of a legal system.
2.1 Convictions by the ECtHR
One way to select areas in which reform is needed is to scrutinize convictions by the ECtHR.
However, a thorough analysis is required. No contracting party of the ECHR has a completely
clean record before the Court (the state with the smallest number of judgments against it is
Monaca with one conviction4; as of 31 January 2011, eight cases are pending5). While the
Convention obliges states to secure certain rights and fundamental freedoms, it appears to
be unavoidable that the contracting parties sometimes fall short of this obligation. Not
every judgment against a state testifies to a shortcoming of its legal system. Violations of
the ECHR may be due to the legal framework of a given state or the way a certain institution
is structured – but they may as well occur because of individual errors, honest mistakes or
an erroneous assessment of a certain situation.
Thus, the mere fact that judgments against a state exist does not necessarily point to a need
for reform. If there are, however, a large number of convictions for violations of a certain
article of the Convention or regarding a special area of the justice system, this is a clear sign
that there is a systemic shortcoming which needs to be addressed.
For example, the Court found Germany in violation of article 3 ECHR (Prohibition of torture,
inhuman and degrading treatment) in the case Gafgen v. Germany6. In this case, a police
officer had interrogated a suspect who had been under suspicion of having kidnapped a
child. Police believed that he had acted alone and kept the child somewhere without access
to water or food. The officer in charge of the investigation feared for the life of the boy and
was keen on obtaining information. He threatened the suspect with ‘pain the likes of which
he had never experienced’. The suspect confessed (but it was too late to save the adducted
child). The police officer who had threatened him was prosecuted, convicted and sentenced
to a fine later on. The suspect submitted an application to the European Court of Human
Rights. The Court found a violation of article 3, holding that the fine which had been
4
ECtHR, Prencipe v Principality of Monaco, judgment of 16 July 2009
Annual Report of the ECtHR 2011, http://www.echr.coe.int/NR/rdonlyres/219E9A92-716A-4337-99DE053358F536B3/0/2011_Rapport_Annuel_EN.pdf
6
ECtHR, Gafgen v Germany, judgment of 1 June 2010
5
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imposed on the police officer was too lenient to be considered a remedy at the domestic
level.
While this case certainly reveals a serious misconduct by a member of the German police
force and shows that the German courts treating the matter have commissioned an error,
one should think that the conviction does not point to a systematic of structural deficiency
in the German legal system. The conviction is one of out of three judgments against
Germany on account on inhuman and degrading treatment since Germany acceded to the
ECHR in 1950; there are no violations of the prohibition of torture limb of article 3 ECHR.
An analysis of cases against the Republic of Moldova, on the other hand, shows another
picture. As of 31 December 2012, since the ratification of the Convention on 12 September
1997, the European Court of Human Rights has found Moldova in violation of the
prohibition of torture 8 times, there are 43 judgments against Moldova because of inhuman
or degrading treatment and the Court held in 21 cases that Moldova had violated the
obligations to investigate allegations or suspicions of torture or inhuman treatment, which
flows from article 3 ECHR7.
The accumulation of judgments in the short time of Moldova’s being a signatory party to the
Convention reveals that there is indeed a systemic problem of torture and ill-treatment and
of impunity for those committing it – in particular considering that the Republic of Moldova
has just some 3.6 Million inhabitants.
Similar conclusions may be drawn regarding protection of property under article 1 of
protocol 1 to the ECHR (89 judgments against Moldova) and the right to a fair trial pursuant
to article 6 (99 judgments against Moldova)8.
While the number of convictions can make it apparent that there is a structural problem in
the justice area – and the examples quoted above certainly belong in this category – it may
sometimes be hard to ascertain whether judgment against a state are the consequence of a
systemic problem which needs to be addressed. Two considerations may be helpful to
answer this question: Firstly, the number of judgments against a state can be compared
with the number of judgments against states of a similar size within a certain period of time.
Although differences in economic capacities, the historic legacy and the time a country had
to adapt its legal system to the requirements of the Convention may blur the picture and
account for certain differences, this comparison gives an indication of the overall state of
affairs in a justice system. To give an example: The Republic of Moldova has roughly 3.6
Million inhabitants and ratified the ECHR in 1997. In the same year, Macedonia, with a
population of approximately 2 Million, ratified the Convention. Since then, the European
7
Table of violations by Article and State 1959 – 2011 published by the Court:
http://www.echr.coe.int/NR/rdonlyres/2B783BFF-39C9-455C-B7C7F821056BF32A/0/TABLEAU_VIOLATIONS_EN_2011.pdf
8
See above
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Court of Human rights found Macedonia in violation of the Convention 78 times, while there
are 207 judgments against Moldova.
Another method to establish whether a critical mass of judgments was reached is, secondly,
to compare the number of judgments against a state per capita within a certain time frame
with the number of convictions of other states.
Although the number of cases in which the European Court of Human Rights found a
violation of the Convention is an important indicator for the need for reform, it is not the
only one. As mentioned above, individual judgments against a state may be due to one-time
mistakes and do not necessarily permit conclusions regarding the entire justice system. On
the other hand, there are cases in which a conviction is based on a legal gap or on a
deficiency of a certain law. In cases like that, a one-time conviction is a clear indicator that
legal amendments are needed.
For example, in the case Iordachi./.Moldova9, the European Court of Human Rights held
that the legal basis for phone interceptions in the Republic of Moldova does not meet the
requirements set out by article 8 ECHR and the Court’s jurisdiction interpreting it. Although
there is only one judgment related to this area, it shows the need for revision of the legal
framework related to special investigative measures.
2.2 Analysis of law in light of ECtHR jurisdiction
As pointed out, judgments holding a state in violation of the ECHR point to deficiencies in a
justice system. However, the ECHR and the jurisdiction of the European Court of Human
Rights can also serve as an analytical tool before judgments against a state have been
passed. The legal framework and the set-up of relevant institutions may be scrutinized as to
their compliance with the rights and freedoms guaranteed by the Convention. In many
areas, the jurisdiction of the Court is very precise, and detailed requirements which a law
has to meet may be inferred from it. A thorough analysis of case law and of the current legal
framework in a certain area may therefore reveal where improvements are needed.
2.3 Conclusions from absence of violations found
While judgments against a state often times indicate that there is a need to reform a part of
the justice system or to amend the legal framework, the absence of violations in a certain
area does not necessarily mean that this area is in line with international standards. There
are several reasons for this finding:
9
ECtHR, Iordachi v Moldova, judgment of 10 February 2009
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Firstly, the Convention enshrines a minimum standard of human rights protection. That
does not only mean that member states are free to offer a higher degree of protection of
the rights guaranteed by the Convention but are not allowed to go below this level (see Art.
53 ECHR). It also means that the ECHR contains those rights that were commonly regarded
as indispensable and agreeable by the member states when the Convention was drafted.
Other rights, which are anyway important to the rule of law and human rights are not
contained in the Convention. Accordingly, applicants cannot rely on the before the ECtHR
and the Court cannot pass judgments in this respect. For example, the ECHR does not confer
a right to asylum and there is no right to freedom from corruption. This explains the absence
of judgments in this area - which does not mean that corruption or asylum matters would
not be important areas to look at when reforming the justice system.
In addition to that, the number of judgments obviously hinges on the number of
applications submitted to the Court. The number of applications, in turn, is related to the
knowledge which citizens, lawyers and NGOs have about the Convention and the
possibilities it offers. Often times it takes some time before this knowledge is spread out and
people start reacting to violations of their rights under the Convention by submitting
applications to the ECtHR. There are usually also people who are aware that they may
submit an application but shy away because the fear repercussions, want to get on with
their lives or have other reasons not to take their case to the Court. Thus, a large number of
human rights violations which indeed did occur may not lead to a conviction by the
Strasbourg court.
Finally, the ECtHR is overburdened with a huge number of applications. This has caused
protracted proceedings, which in many cases last several years. As a consequence of this,
judgments against a state are rendered with considerable delay (and the fact that applicants
have to exhaust domestic remedies first ads further to this). Thus, the current number of
judgments against a state does not necessarily give the ‘full picture’ of the observance of
the ECHR in this state. Although an application of course does not equal a judgment by the
Court, it may still be worthwhile to look at the number of pending cases, too (as of
31.01.2012, 4.400 cases are pending against the Republic of Moldova10).
3) International standard and destination for change
Justice reform requires a thorough analysis of the current situation in a jurisdiction and the
identification of shortcomings. It also requires a clear vision of the desired state. If a society
wants to reform the legal system, all stakeholders need to know what they are aiming at
and what the common goal is. Consensus about this is hard to achieve. Indeed, the situation
is complicated: Firstly, there is usually a wide range of opinions on what the future justice
10
Statistic published by the ECtHR, http://www.echr.coe.int/NR/rdonlyres/D552E6AD-4FCF-4A77-BB70CBA53567AD16/0/CHART_31012012.pdf
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system should look like, with viewpoints varying from ‘radical change of the entire system is
needed’ to ‘improvements should be made step by step and good things preserved’. The
situation is further complicated by the involvement of international organizations and other
donors, which support the reform process but which do not necessarily speak with one
voice.
Secondly, there is no ideal solution which would create a fair, accessible and transparent
justice system. There are two major categories of justice systems to be found in Europe –
the common law systems and the civil law or continental law systems. Within each of these
systems, there are many differences and various approaches to legal problems. The point
that one of these systems would be superior to the other in any respect and that the
solutions offered by this system should be adopted is hard to make. In addition to that, in
many countries these systems do not exist in their pure forms anymore, but have borrowed
from other jurisdictions and incorporated elements from other systems into their own.
Consequently, it is hard to identify best practices or internationally recognized solutions to
legal problems.
In this situation, the ECHR can provide guidance. The rights and fundamental freedoms
enshrined in the Convention represent the common denominator in Europe - and the
standard of human rights protection each member state of the Council of Europe is obliged
to accomplish. Due to this obligation, it cannot be doubted that the justice system to be
created has to be such as to comply with the Convention.
However, the legal notions and principles employed in the text of the ECHR are
comparatively general. The ECHR obliges member states to secure certain rights, but it is
silent as to how precisely they have to meet this obligation. The European Court of Human
Rights grants them a margin of appreciation when it comes to deciding which measures
serve the desired human rights protection best or how to prioritize in case different rights
are colliding11. Therefore it is hard to infer concrete legal measures from the Convention.
Yet, in some areas the European Court of Human Rights, which interprets the guarantees
enshrined in the Convention, has set out the obligations flowing from the Convention in a
very detailed fashion. A gate for far reaching interferences of the Court in national legal
frameworks was opened in the case Marckx v. Belgium12. In this case, the Court scrutinized
provisions of Belgian family law and private law. At the material time, Belgian law foresaw
that a child born out of wedlock was legally not regarded as the mother’s child until the
mother had taken formal legal steps to recognize his or her. The applicant complained that
this was in violation of the right to family life under article 8 ECHR and several other
provisions of the Convention.
11
12
ECtHR, Handyside v UK, judgment of 7 December 1977
ECtHR, Marckx v. Belgium, judgment of 13 June 1979
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There was some debate whether the ECHR was designed for matters like this. Judge Gerald
Fitzmaurice gave a dissenting opinion, in which he stated that it was not the end of the
ECHR to scrutinize the family law of member states, recalling what he saw as the purpose of
the Convention: ‘(…)the main, if not indeed the sole object and intended sphere of
application of Article 8 (art. 8), was that of what I will call the "domiciliary protection" of the
individual. He and his family were no longer to be subjected to the four o’clock in the
morning rat-a-tat on the door; to domestic intrusions, searches and questionings; to
examinations, delaying and confiscation of correspondence; to the planting of listening
devices (bugging); to restrictions on the use of radio and television; to telephone-tapping or
disconnection; to measures of coercion such as cutting off the electricity or water supply; to
such abominations as children being required to report upon the activities of their parents,
and even sometimes the same for one spouse against another, - in short the whole gamut of
fascist and communist inquisitorial practices(…)’.
The majority of judges, however, considered the issues brought forward by the applicant as
falling into the scope of article 8 ECHR and scrutinized Belgian family law with respect to its
compliance with the right to respect for family life, holding the respondent state in
violation. By this (and other decisions) they opened the door to far reaching scrutiny of the
legal frameworks of the member states. More and more act of the member states’ domestic
laws were examined by the Court and consequently the jurisdiction of the Court became
more detailed and specific.
Consequently, very specific requirements which domestic law has to meet may be deducted
from judgments rendered by the ECHR. For example, the aforementioned judgment Iordachi
v Moldova contains clear indications of requirements which a law that serves as a basis for
phone interceptions and similar measures has to meet. A detailed analysis of this judgment
and some other judgments regarding special investigative measures – particularly the
decisions and judgments in the cases Saravia and Weber v Germany, Kennedy v UK and
Association for European Integration v Bulgaria will provide a detailed checklist for domestic
lawmakers. Thus, the ECHR can serve as a roadmap for legal reform.
4) Instrument for Pressure and Justification for change
In the context of justice reform, the Convention can also fulfill an important psychological
task. Reforming a legal system is not a purely legal matter. It has a direct impact not only on
the life of ordinary citizens, who are affected by the state of the rule of law, but also on the
persons forming part of the justice system. Reform inevitably implies change. This will not
be welcome to everybody. Jobs will be lost and other jobs created, spheres of influence will
be cut and others expanded, new skills will be needed and others lose their value. It is
unavoidable that this change will create opposition – by those who are acting in good faith
and just are not comfortable with change as well as by those who benefit from the
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deficiencies of the current system and do not want to let go of their privileges and business
interests.
This psychological factor is important and needs to be considered. In this respect, it is
helpful that the ECHR imposes obligations. States who do not comply with these obligations
will suffer financial damage as well as damage to their reputation. This is a valuable
argument which progressive forces can cite in their favor. Where the ECtHR demands
changes to laws and institutions, reform can in the long run not be rejected.
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