European Court: 15 years” “

“What new international mechanism of protection do we need in the Europe of the 21st century? Are the current procedures still suitable now that the system of the protection of human rights has acquired a pan-European dimension?” These are the key questions posed by LUZIUS WILDHABER , distinguished Swiss jurist and President of the European Court of Human Rights. Especially over the last 15 years the Court’s work has undergone far-reaching changes. It tries to give concrete long-term perspectives to the protection and promotion of the fundamental rights and liberties sanctioned by the Convention adopted within the Council of Europe in 1950. HISTORICAL BACKGROUND. The Convention is considered the “key realization” of the Council of Europe. It defines the rights that the member states pledge to guarantee to their citizens. The 59 articles of the Convention and the protocols annexed to it sanction, for example, the right to life (art. 2), the prohibition of torture (art. 3), and the prohibition of slavery and forced labour (art. 4). But they also uphold the right to security, a fair trial, respect for private and family life, freedom of expression, of conscience, and of religion. The best known of the additional protocols is perhaps the sixth, on the abolition of the death sentence. Once the Convention had been signed, a mechanism for the protection of the rights enunciated in it was put in place. It made provision for two controlling institutions: the Commission of Human Rights (founded in 1954), with the task of verifying the content and the eligibility of suits, and the Court of Human Rights (1959), with the task of pronouncing sentences on the dossiers transmitted to it by the Commission. The Committee of Ministers of the Council of Europe, in turn, was given the task of verifying the application of the sentences. AFTER THE FALL OF THE BERLIN WALL. After 1989, the Council of Europe progressively extended its confines, passing from 23 to the current 45 member states. At the same time the Convention became the patrimony of almost the whole continent and of 800 million citizens. Just for this reason, however, suits brought to the Strasbourg increased beyond measure (often brought by the states of Eastern Europe) and the cases became ever more complex. The growing burden of work risked – and risks – bringing the action of the court to a halt, so much so that Protocol no. 11 came into force in 1998: it introduced a single Court (albeit with organizational subdivisions within it) with the aim of “reinforcing the efficacy of the mechanisms of protection” and making the proceedings more rapid. The Court now comprises as many judges as there are signatory States. In those cases considered “admissible” (which form a minority), the Court first tries to reach an amicable settlement; but if this fails it will then rule with a sentence. The Committee of Ministers invigilates on the execution of the sentence, ascertains that the necessary legal measures to prevent the repetition of the violations are adopted, and verifies that due compensation is, if necessary, paid to the injured party. NO TO TORTURE, YES TO FREEDOM OF CONSCIENCE. The most frequent cases concern the disappearance of persons, the torture or maltreatment of detainees, the arbitrary deprivation of freedom, the unjustified expulsion of a foreigner, and forms of discrimination towards less protected social categories. The Court’s more recent sentences include, a controversial one in mid-November in which the Court reaffirmed that the ban imposed in Turkey on wearing the Muslim headscarf in universities “does not violate human rights”, but on the contrary is a “protection of the democratic system”. It aroused harsh reactions on the part of Turkey’s ruling Islamic party. UNRESOLVED PROBLEMS. During the third Summit of the heads of State and of government of the Council of Europe, held in Warsaw in May 2005, Wildhaber vigorously described the practical problems of the Court, burdened by a huge backlog of 80,000 back cases. He stressed “the need to ratify as soon as possible, and render operational, protocol no. 14”. “The aim of this reform – Wildhaber explained – is to permit the Court to devote greater attention to well-founded and important cases”, by reinforcing its ability to “filter” the applications made to it: in the period between 1st January and 30 September 2005 over 33,000 suits were lodged at the Strasbourg Court, but only 700 of these were declared admissible. In the first nine months of the year 19,000 pending dossiers were closed (against 14,000 in 2004) and 710 final sentences pronounced. Luzius Wildhaber explains: “The Court is not just any old European institution: it symbolises a fundamental aspect of European juridical culture”. In the half century of its existence, the Court “has formed a coherent corpus of legal provisions in the field of human rights, which help to guide the national authorities and jurisdictions” in their actions. The many back cases, however, do not represent a failure of the Court, according to its President. Rather, they “reflect the importance that the Court has acquired in the heads and hearts of Europeans”.———————————————————————————————————– Sir Europa (English) N.ro assoluto : 1430 N.ro relativo : 79 Data pubblicazione : 16/11/2005