The European Convention on Human Rights As a Tool for Justice Reform 1

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:

 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

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 Conference resulted in a ‘Message to Europeans’, which called, inter alia, for a charter of human rights guaranteeing liberty of thought, assembly and expression’.

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 involved3. 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

2 Quoted after Ed Bates, The evolution of the European Convention on Human Rights, p. 44

3 ECtHR, Fressoz and Roire v France, judgment of 21 January 1999 para 37

Holger Hembach, published on: http://echr-online.info 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 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

4 ECtHR, Prencipe v Principality of Monaco, judgment of 16 July 2009

5 Annual Report of the ECtHR 2011, http://www.echr.coe.int/NR/rdonlyres/219E9A92-716A-4337-99DE- 053358F536B3/0/2011_Rapport_Annuel_EN.pdf

6 ECtHR, Gafgen v Germany, judgment of 1 June 2010

Holger Hembach, published on: http://echr-online.info 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 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

7 Table of violations by Article and State 1959 – 2011 published by the Court: http://www.echr.coe.int/NR/rdonlyres/2B783BFF-39C9-455C-B7C7- F821056BF32A/0/TABLEAU_VIOLATIONS_EN_2011.pdf

8 See above

Holger Hembach, published on: http://echr-online.info 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 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

9 ECtHR, Iordachi v Moldova, judgment of 10 February 2009

Holger Hembach, published on: http://echr-online.info 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:

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

10 Statistic published by the ECtHR, http://www.echr.coe.int/NR/rdonlyres/D552E6AD-4FCF-4A77-BB70- CBA53567AD16/0/CHART_31012012.pdf

Holger Hembach, published on: http://echr-online.info 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 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

11 ECtHR, Handyside v UK, judgment of 7 December 1977

12 ECtHR, Marckx v. Belgium, judgment of 13 June 1979

Holger Hembach, published on: http://echr-online.info 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.

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

Holger Hembach, published on: http://echr-online.info 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 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.

Holger Hembach, published on: http://echr-online.info