May 2019 marks the 70th anniversary of the Council of Europe. It was founded in 1949 as a response to the fundamental violations of human rights in World War II. The Statute was signed by ten founders and now includes 47 Member States which have come together to agree on common standards on human rights, democracy and the rule of law.
Today, the Council is Europe’s leading human rights organisation. Its anniversary serves to remind us how important this institution‘s work is in promoting norms and values that only 70 years ago were far away from reality. It also serves to reflect on the challenges the Council faces in order to maintain its relevance in the future.
New diplomatic era
The protection of human rights became an important priority for the Europeans who sought the political unity in the region after the devastating world war. States were determined to ensure that such a tragedy would never happen again and soon realised that the recovery of the region would come through unity.
The establishment of the Council of Europe marked a new diplomatic era. Countries that had only recently fought with each other came together to form a joint political institution with an ambitious aim: ‘to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress’ (Statute of the Council of Europe, Article 1a).
Achievement that should be celebrated
The Council of Europe’s most famous achievement is the 1953 European Convention on Human Rights (ECHR) – a treaty designed to protect human rights, democracy and the rule of law. The relevance of the Convention is particularly highlighted in the judgment of the European Court of Human Rights (ECtHR) Loizidou v. Turkey, where the Court described the Convention as a constitutional document protecting European public order .
Unlike many other previous international treaties, the ECHR does not regulate mutual relations between States, but rather lays down fundamental human rights standards that have to be respected by Member States.
Radical change in the history of international law
The consolidation of human rights in the ECHR is considered to be one the most radical changes in the history of international law as individuals became subjects of international law. Further, human rights standards have become a part of the international protection and surveillance mechanism via Council’s institutions. Human rights issues had previously fallen under the exclusive competence and regulation of sovereign states.
The rights of 830 million people
The European Court of Human rights (ECtHR) was established according to the Convention’s article 19. It rules on individual or State applications alleging violations of the rights set out in the Convention. Since its first session in 1959, the Strasbourg Court, as it is known, has dealt with more than 800,000 applications.
All 830 million European citizens have an ultimate right of appeal to the ECtHR to uphold their basic human rights. Nevertheless, the Court faced unprecedented problems by enabling individuals to bring their cases directly and an incredible growth in the number of the complaints began to threaten overall quality.
Caseload threatens the effectiveness
The Council of Europe has undertaken various reforms to deal with the Court’s caseload and introduced various protocols to attempt to resolve the strain (for example, Protocols 11, 14 and 16 ). However, these protocols not been able to alleviate the tremendous stress under which the Court functions and further innovative solutions will have to be considered to ensure the long-term effectiveness of the ECtHR.
There are currently 58, 950 pending applications before the Court. According to the 2018 statistics, the Court delivered judgements concerning 2,738 applications per year. Thus, the question of reforming the mechanism is still at centre stage.
Since the ECtHR rejects around 90% of all applications, the responsibility for addressing the cases also falls to domestic authorities. The vast number of rejections implies that dissemination of information about the specifics of the Court’s jurisdiction and defended rights is not sufficient in Member States and people do not understand the limits of the Court’s jurisdiction.
“Pilot judgement” procedure
To respond to the caseload, the Court introduced the “pilot judgment” procedure in the case of Broniowski v. Poland. This enabled the ECtHR to deal with larger groups of repetitive cases rooted in the same problem. In principle, the pilot judgement procedure means that when a systemic problem has been identified in a particular state, the state is obliged to resolve it.
However, this method could only be successful if there was effective co-operation between the Council and the State. But, repetitive cases continue to account for the vast majority (85 %) of new cases coming to the Court, which implies that national procedures are insufficient in addressing prolonged non-implementation.
The Committee of Ministers, which oversees the implementation of the Court’s judgments in the Member States, is therefore of particular importance. Further, it is important to consider what more other Council’s institutions can do to assist the Committee’s supervision process and to support timely and effective national implementation of Court’s rulings.
Interpretation of law v. creation of law
The Court‘s jurisprudence is important for the national legal systems of the Member States as it frames the development of human rights standards. Rulings from the Strasbourg Court are binding on the countries concerned and have resulted in many changes to legislation thus strenghtening rule of law in Europe.
The Court’s case-law makes the Convention a powerful living instrument. However, it also presupposes a threat that the Member States will have to assume new responsibilities and the Court‘s interpretation of law would become a creation of law.
Member States have found the strong tools of the Court problematic. The ECtHR rulings on various social issues (such as abortion, assisted suicide, body searches, domestic slavery, adoption by homosexuals, wearing religious symbols at school, the recognition of transsexuals) has led to hostile reactions by several states to the Court’s judicial activism. This reaction has also been affected by the European Union (EU) domestic political tensions, as the 2009 Lisbon Treaty obliged the EU to become a party to the European Convention on Human Rights and to accept the Court’s jurisdiction. Rising levels of nationalism and extremism across Europe directly challenge the Court‘s core values and the principles of international cooperation.
Reinforced Council of Europe
As the Secretary General Thorbjørn Jagland highlights, the Council of Europe should be reinforced. Europe needs a strong and effective Council of Europe which should continue to play an essential role in setting standards and moderating the commitments of Member States, as well as creating dialogues and preventing conflicts.
Written by Giedre Casaite, trainee at LawTransform