Wednesday, 8 February 2012

Speeches of Bratza and Hammarberg

I did not link to them yet, but at the opening of the judicial year in Strasbourg both the Court's President, Sir Nicolas Bratza, and the Commissioner for Human Rights of the Council of Europe, Thomas Hammarberg, both delivered speeches.

Bratza for the first and also last time (his term as judge at the Court expires in Autumn) spoke as President of the Court. He started with an admonition, referring to the economic crisis:

The temptation is to be inward-looking and defensive, for States as well as individuals. Human rights, the rule of law, justice seem to slip further down the political agenda as Governments look for quick solutions or simply find themselves faced with difficult choices as funds become scarce. It is in times like these that democratic society is tested. In this climate we must remember that human rights are not a luxury.
And he also put matters in perspective: yes, the Ccourt has problems with a large case-load and has therefore been compared to a patient with an illness, but there are also "healthy signs of life": a substantive number of judgments continues to be delivered, inadmissible claims are dealt with more efficiently and the sudden surge in requests for interim measures in the past two years has returned to more normal levels after reforms in dealing with them had been made. On the criticism of the past year the Court's President remarked, in very diplomatic terms, the following:

I do not expect Governments to agree with all the Court’s judgments and decisions and they are naturally free to express that disagreement. Where they feel the need to do so, I would urge them to use terms which do not undermine the independence and authority of the Court and which seek to rely on reasoned argument rather than emotion and exaggeration. Democracy cannot function effectively without the rule of law; there can be no rule of law without respect for an independent judiciary, and that is true at European as well as domestic level.


Hammarberg, to be succeeded this year by Nils Mui┼żnieks of Latvia on 1 april, stressed that the Court has made many key contributions on a range of issues which he also encountered in his own work: the rights of Roma, homosexuals, migrants and persons with disabilities amongst others. A few other notable remarks he made concerned the current reform efforts. Hammarberg emphasized:

However, everything that I have learned has made me believe that there are some features of the system which definitely must be protected through the reform process. One is the possibility of individual petition. Another is the principle of collective guarantee. A third one is the notion of the Convention as a “living instrument”, allowing the Court to make dynamic interpretations of the rights set forth in the Convention.
On the latter point, the Convention as a living instrument, he noted:

I do consider that the Court on the whole has handled this challenge in a proper manner. Criticisms about “judicial activism” or arbitrariness have really not been fair. The approach has been serious. The judges have not introduced just personal ideas; they explore whether there is a consensus on such cases in the superior courts in the member states; they analyse decisions of other international jurisdictions; and they take into account, when relevant, treaty developments in the UN.
Referring to the large case-load, Hammarberg stated:

It must be stressed that the problem is not that people complain, but that many of them have reasons to do so.
At the same occasion a seminar was also held on “How to ensure greater involvement of national courts in the Convention system?”. A webcast of that seminar can be watched here. There you can also find the speeches delivered.

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