Robert Spano, President of the European Court of Human Rights: “Forging a culture of human rights in national parliaments”

 

Lithuanian Parliament

Vilnius, 28 April 2022

 

Robert Spano,

President of the European Court of Human Rights

 

 

Madam Speaker,

Dear Members of the Seimas of the Republic of Lithuania,

 

It is indeed a great honour for me to be with you here today as President of the European Court of Human Rights, and to be in a position to address such an illustrious audience, with the kind of influence you have on your country. This place and this visit was supposed to take place in September 2020. However, the global pandemic prevented me from travelling, like for many of us. Eighteen months later I am very much appreciative of being here amongst you.

 

I would very much like to thank the Speaker of the House for this special invitation. I firmly believe in the importance of dialogue and cooperation with domestic institutions and especially national parliaments, who are key partners in the Convention system.

 

This will be my overall message here today. That is for me as on behalf of the European Court of Human Rights to be in a position to speak about the role of national parliaments in forging a culture of human rights at the domestic level.

I want to focus in particular on the duties and opportunities that exist for you as parliamentarians to protect and realise human rights as part of your commitment to the values of democracy, human rights and the rule of law.

 

But it goes without saying, before I begin to discuss the main topic of my speech today, I must evoke the transformative period in European history which we are currently living through -  a period when the relative peace and security which we have taken for granted, may be, on our continent has been shattered by Russia’s war and atrocities in Ukraine.

 

When we celebrated the European Convention on Human Rights’ 70^th anniversary in 2020, we highlighted that the Convention constituted one of the greatest peace projects in human history. Indeed, the very Preamble to the Convention refers to human rights and fundamental freedoms as the foundation of justice and peace in the world. The work of the Council of Europe and its judicial control mechanism, the Court, has contributed to the stability, security and peace in Europe up to this point. However, it can certainly be questioned whether we have failed in our mission when witnessing a war waged by a former Council of Europe member State against a current member State. It is for others to debate that question.

 

But let me be very clear, we may be witnessing a momentous catastrophe, but it is important that we continue to believe in the foundational ideas of the Council of Europe. To believe that even in the face of catastrophe there are opportunities. To believe that the support and strength we show domestically and internationally towards those that are aggrieved by war is not forgotten.  

 

I still maintain my view that the Council of Europe has and will continue to play an essential role in protecting human rights and fundamental freedoms to pave the way for peace again. In particular, now my Court, the European Court of Human Rights, ensures the maintenance of a pluralistic democracy by guaranteeing respect for basic democratic principles in areas such as participation in free elections, a very important concept for all of you in this room of course;  freedom of expression, religion, association and assembly; and non-discrimination. It promotes the rule of law, which provides the essential framework for the development of effective political democracy.

Photo by Džoja Gunda Barysaitė, Office of the Seimas

 

What have we seen, Ladies and Gentlemen? What have we seen in the last two months? What we have seen is when these freedoms are eroded, when we see democratic decay, when we see the trampling of the opposition and the disregard for the freedom of expression, catastrophic consequences of unbridled totalitarianism and ultimately violence occur.

 

Human rights are not just for the times when everything is happy and good. Human rights become ever more important when we have disagreements.  

 

The European Court of Human Rights also sets legal standards for the administration of justice, for the personal liberty and security of each individual, and for other safeguards that protect the individual against arbitrariness, injustice, and abuse of power. The Court reinforces respect for human dignity by ensuring the observance of fundamental guarantees such as the right to life, the prohibition of ill-treatment, the protection of private and family life and the prohibition against discrimination. I have recently had the opportunity of underlining this in two conferences on gender-based violence and discrimination against women, an extremely important theme which the Court can address through the prism of the European Convention on Human Rights and the Council of Europe’s own Istanbul Convention, the importance of which is steadily growing. In the face of threats of all kinds, the defence of peace, the promotion of democracy, human rights and the rule of law remains essential and the Court's mission to make Europe a continent of peace is of course now more essential than ever.

 

Let me now turn to the role of national parliaments in human rights protection within the Convention system.  Your role in the system that I represent. Within the Council of Europe, the Parliamentary Assembly has been most vocal in calling upon parliamentarians to fulfil their obligation to promote the realisation of human rights. I would like to refer to an extremely useful Handbook for Parliamentarians^[1] which was published a few years ago by the Council of Europe entitled “The role of national parliaments as guarantors of human rights in Europe” which I would recommend.

 

Why do I use the terms duties and opportunities for Parliamentarians?

 

Duties because under the principle of subsidiarity, member States are first and foremost responsible for the effective implementation of the international human rights norms they have voluntarily signed up to. By virtue of Article 1 of the European Convention on Human Rights, states Parties undertake to secure to everyone within their jurisdiction the rights and freedoms enshrined in the Convention. That obligation is binding on all branches of State – the executive, the judiciary and you, the legislative.

 

Opportunities because to my mind there is still scope for parliaments to play an even more useful and proactive role in this regard. As I have previously written, we may deepen the framework of cooperation.

 

At the high-level Brussels conference entitled “Implementation of the European Convention on Human Rights, our Shared Responsibility”, organised in 2015 as part of the reform process of the Convention system, the 47 governments explicitly acknowledged the value of parliamentary involvement in the execution of Court judgments.

 

 

 

However, the point I would like to make today is that in fact your role is more far-reaching than that. You fulfil your duty to protect human rights through legislating (including the vetting of draft legislation); through your involvement in the ratification of international human rights treaties; through holding the executive to account; liaising with national human rights institutions and fostering the creation of a pervasive human rights culture.^[2]

 

Let me stop there for a moment. What do I mean by parliamentarians fostering a pervasive human rights culture? It means to take account of how parliamentarians engage in national debate. It takes account of the respect for principles of democratic governance. It also includes respect for other branches of government. It also includes parliamentarians respecting the judicial process, respecting the independence of the judiciary. We all have our roles to play in an effective democracy based on the separation of powers. Judges should not usurp and evade the legislative process. But again parliamentarians and ministers and executive officials should not interfere with the judicial process.

 

This is one of the examples in which you can continue to contribute to an effective human rights culture in your country.

 

But let me give you another example. After the Court’s judgment in Matiošaitis and Others[3] concerning life prisoners, the Lithuanian legislation was amended here in the Seimas and in the follow-up case of Dardanskis and Others the Court acknowledged that the life sentence commutation procedure and its requirements rectified the violation found under Article 3 and provided an adequate and sufficient remedy for the complaints.

 

This is exactly the kind of dialogue, the kind of reactive-proactive engagement by national parliaments with the human rights system under the Convention, which creates positive results.   

 

Some politicians may feel as if their democratic mandates are being threatened by people like me, by international judges allegedly imposing their will on the peoples of Europe. As such, some consider that important elements of social and economic policy are being determined outside of national democratic or judicial processes. This is a debate which is occurring in a number of European States and which I have addressed in several of my recent missions as President. It is a criticism, it is a debate we take very seriously because we will not be successful in protecting human rights if we do not respect each other’s roles and understand that all power needs to be checked and balanced.

 

But I firmly believe that this approach to the European human rights architecture needs to be explained. Let me do this here now.  The Convention is not a top-down system. It is not a system where international judges tell national parliaments what to do. It is a bottom-up strategy, which aims to empower national rights-holders and decision-makers to take the lead in securing human rights. What do I mean by that? I mean that what we are wanting to see is our national parliaments actively engaging with human rights issues. And when they do that, when national parliaments are actively discussing about the limits of legislation or the possibilities of legislation to increase human rights, then the work has already been done at the national level.

 

Dialogue between national authorities and the Strasbourg Court is thus essential. It was enhanced recently through the adoption of Protocol 16 to the Convention. An important protocol for his country, which I will come to. This Protocol provides the possibility for the highest courts and tribunals to request an advisory opinion from the Court. Indeed, as I am sure you know well such a request was sought by the Supreme Administrative Court of Lithuania on the current legislation on the consequences of impeachment which is at issue in a case pending before it. On 8 April the Court delivered its opinion.[4] And I also note the recent adoption of the amendment to the Lithuanian Constitution regarding this sensitive matter by which the Seimas has contributed to aligning Lithuanian Constitutional Law with the European Convention. This is exactly the kind of dialogue which ultimately creates a sustainable system of collective guarantees of human rights. 

 

National parliaments are well placed to carry out the role of human rights protection because of their representative, legislative and oversight functions. You may ask why. Firstly, because you enjoy democratic legitimacy as elected representatives. Secondly, because as lawmakers you can ensure that measures are taken to prevent human rights violations and domestic remedies are available if such violations have taken place. Thirdly, because you oversee the executive and this means that you scrutinise a government’s compliance with the Convention, including its execution of judgments of the Court.

 

As I have mentioned, and I want to really focus on this issue because it is an important one. 

 

The Court is increasingly becoming attentive to the national legislative process. Our interlocutors are not just national judges or national executive officials. Our interlocutors are you, as well. We are looking to you when we are looking at ways in which the protection of human rights at national level is being implemented.

 

In a very famous case called Animal Defenders^[5] from 2013, the applicant was a non-governmental organisation which complained about the prohibition on paid political advertising as set out in domestic legislation. The dispute arose as to whether the interference was ‘necessary in a democratic society’.

 

As you know this requirement, the necessity in a democratic society to interfere with human rights is a necessity assessment which takes place in this room for the first time. It is in this room that Lithuanian legislation is laid and set and an assessment is made about this necessity.

 

In this case that I have mentioned when we found no violation, we took into account the fact that the legislation in question had undergone extensive examination by the UK Parliament itself, by your analogues in the UK, and that there had been cross-party support for the Act as well as an in-depth analysis of its compatibility with the Convention undertaken by the domestic courts. And in the case we said the following:

“The quality of the parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including the operation of the relevant margin of appreciation.”

So the extent to which you openly, actively and in good faith discuss human rights issues in this hall, in this chamber, will be of immense importance for an adequate analysis of Convention issues.   

 

When former President of the Court, Sir Nicolas Bratza, appeared before the United Kingdom’s Parliamentary Joint Committee on Human Rights, he acknowledged that while national judges were the ‘natural partners’ of the Court, judicial dialogue with human rights committees in national parliament is important. Recently, I myself have given evidence to the Westminster Parliament’s Joint Committee on Human Rights in respect of governmental plans to reform the domestic UK human rights legislation.

 

With those words let me now turn to the second part of my speech today, which is a bit of a different focus. I would like to return to a theme I mentioned in my introduction, because it is very important to discuss this also in terms of what we are seeing happening in Europe these days. That is the importance of pluralism, tolerance and broadmindedness, as hallmarks of a “democratic society”.

 

The Court has held that although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail, public opinion is not a “trump card”.

 

There is a wonderful phrase, which a former justice once said, which is very apt to repeat in this room. And it is this: democracy values everyone equally, even if the majority does not. Let me say this again: democracy values everyone equally, even if the majority does not. Democracy is not absolute majoritarianism. The true concept of democracy is an inclusive one, where the rights and interests of all your peoples are taken into account. This is the core feature of the European Court of Human rights - emphasis on pluralism, broadmindedness and tolerance.      

 

The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion and harmony.^[6] The Court has also noted the States’ positive obligation to secure the effective enjoyment of these rights. They cannot be just theoretical. They cannot be just illusory. This positive obligation is of particular importance for people holding unpopular views or belonging to minorities, for example sexual minorities or religious minorities, because they are more vulnerable to victimisation.^[7]

 

The quality of our democracy is measured in the way we respect those that are vulnerable. It is all well and good to respect those that are powerful. But democracy means respecting everyone and everyone’s interests.  

 

It is within that context that the Court approaches complaints of discriminatory treatment. Article 14 guarantees equal treatment before the law of the Convention. This is also a fundamental principle of Lithuanian constitutional law, like in all of the member states of the Council of Europe. But it has to be made in practice. We have found for example that differences based on sex or on sexual orientation require particularly serious reasons by way of justification. Indeed we have said: “Differences based solely on considerations of sexual orientation are unacceptable under the Convention”.^[8]

 

Indeed, the European Court of Human Rights has been a pioneer in its interpretation of the Convention in respect of LGBTI persons over the last few decades. The Court has served as a rich source of jurisprudential inspiration for other national and international courts.

 

I would like to mention here the important case of Beizaras and Levickas v. Lithuania from January 2020, which deals with online hate crime, nowadays we are seeing more and more. We always thought the Internet would be this wonderful way for us to freely express our ideas. But what is happening is that it has become an ever more difficult medium when it comes to preventing hate speech and hate crime. In this case we held that there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention, finding that the applicants - gay men had suffered discrimination on the grounds of their sexual orientation. We noted in particular that the applicants’ sexual orientation had played a role in the way they had been treated by the authorities, which had quite clearly expressed disapproval of them publicly demonstrating their homosexuality when refusing to launch a pre-trial investigation.

 

The next case that I would like to mention, which is also a landmark case is “Romuva” v. Lithuania[9]. In that case the refusal by this house to grant to the applicant association the status of a State‑recognised religious association was of concern. Finding a violation of Article 14 read in conjunction with Article 9 (freedom of religion), we held that when refusing to grant State recognition to the applicant association, the State authorities had not provided a reasonable and objective justification for treating the applicant association differently from other religious associations.

 

It is worth repeating, before I conclude, some of the language used by the Court in that case, where we emphasised that “maintaining true religious pluralism is vital to the survival of a democratic society (…). The role of the authorities is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.” [10] As I have learned, this judgment is yet to be implemented. We will hopefully see that happen in the future.

 

Ladies and Gentlemen,

 

Let me conclude by once again saying that for the President of the European Court of Human Rights and his colleagues: Judge Kūris, judge elected and respected of Lithuania, Abel Campos, Deputy Registrar of the Court, who were with you today, it has been a great honour to be able to address you, such an illustrious group of individuals doing their level best for their country.             

 

We have demonstrated that a robust and parliamentary-orientated conception of subsidiarity is incredibly important.[11] The Court creates incentives for member states to do the job of fulfilling their mandate under Article 1 of the Convention – that of securing to everyone within their jurisdiction their human rights and freedoms.

 

Let me conclude by saying this. Never before after the Second World War have we been in a situation where the fundamental ideals of the international rule-based order has been under the kinds of threats that we are looking and we are seeing. It is now for every one of us who work in the area of promoting the rule of law, democracy and human rights, to do our best to continue the great tradition which has been at a forefront of the evolution in the Council of Europe in the last 30 years.

 

Thank you very much indeed. Thank you for listening.