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Parliamentary Assembly Session: 26 to 30 April 2010

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Statement by Eveline SCHLUMPF-WIDMER, Head of the Federal Department of Justice and Police of Switzerland

Effective implementation of the European Convention on Human Rights: the Interlaken process

29 April 2010

Mr President
Ladies and gentlemen,

Thank you first for your kind invitation. It is with great pleasure that I take this opportunity to say a few words on the follow up to Interlaken.

Before I get to the heart of the subject I would like to make an introductory comment.

Despite all the concerns about the Court's future, which were the reasons for the Interlaken conference, which determined its content and which will shape the follow up to the political declaration that the ministers adopted – despite all these concerns, we should not forget the major contribution the Court has made and the benefits it offers for the whole of Europe. The most recent proof of this is the decision of the European Union to accede to the European Convention on Human Rights.

This is a strong political signal that confirms Strasbourg's importance for the entire continent, both in the past and in the future.

I now come to the Interlaken follow-up process.

Let me start with a few general comments about the Interlaken “momentum”.

If we are to reap maximum benefit from the conference “momentum”, there has to be an immediate, practical and agreed follow-up that involves all the participants in the Interlaken process.

I therefore welcome the work that was already in hand when the Interlaken Declaration had barely been adopted - in the Committee of Ministers, the Parliamentary Assembly, the Court itself and the general secretariat, including the committees of experts responsible for the reform of the supervisory machinery. The relevance of the work that is being undertaken at all levels and the way it is being managed are a source of hope and confidence for the Court's future. They offer evidence of a commitment to making full use of the Interlaken "momentum".

In particular, I would cite the setting up, in the Committee of Ministers, of the CM-suivi group, which we welcome as a body that can offer the reform process political support and guidance. Next, there is the excellent document presented in March 2010 by the Secretary General, entitled "The Interlaken Declaration and Action Plan – Modalities of implementation". Third, there are the measures already agreed or planned by the Court, on the basis of existing texts. Fourth, there is the practical approach adopted by the committees of experts involved in the follow-up process. And finally, there are the activities of your own Assembly.

I am convinced, ladies and gentlemen, that there has been a good start to the Interlaken follow up.

I now wish to consider the reform process from the perspective, first of the past and then of the future.

First a brief look at the past.

The original organisational arrangements established by the Convention continued more or less unchanged until 1998, the year Protocol No. 11 came into force. There can be no doubt that this protocol marked the first major step in the reform process. It provides, and continues to provide, the foundations for all the follow-up work.

The next major step is the entry into force in about one month's time of Protocol No. 14. Protocol 14 is also promising for the potential it offers for reducing the burden of the Court's workload.

These two protocols have enabled us to make major progress and will continue to do so, but we must acknowledge that the reforms they have introduced have merely slowed down the deterioration in the Court's situation and will not be able to do more than this in the future. They have not provided and will not provide a lasting solution to the problem. Indeed, developments since the respective reforms were first mooted have resulted in these two protocols being overtaken by events by the time of their entry into force.

Hence the importance of a rapid and practical follow up to the Interlaken conference.

By adopting the Declaration, the member states committed themselves in Interlaken to a third, new major stage in the reform process.

We consider that, in itself, Interlaken was a success, in the sense that it saw the unanimous adoption of an Action Plan setting out not only political guidelines but also a catalogue of practical reform measures, coupled with clear deadlines for evaluating the progress achieved. This evaluation will be based on a very practical yardstick, since progress will be defined in terms of improvements in the Court's situation, or in other words the ratio of applications lodged to applications dealt with.

In the longer term, the success of the Interlaken Conference will depend on successful implementation of the plan. In Interlaken, we paved the way for lasting relief for the Court. Our efforts will be truly successful if we gradually manage, through a combination of measures for which the Action Plan provides, to strike a balance between the number of applications lodged and the number of cases dealt with, and this at a level lower than that of today.

These measures, as we are aware, lie at three relevant levels: member states, the Court and the Committee of Ministers, and to some extent they can be carried out without amendment of the Convention.

Possible first impressions could be wrong, in that these measures, described as being "on the basis of existing texts", are not necessarily the easiest ones to put into practice. This applies particularly to part A of the plan and the application of the Convention at national level. This part is not particularly detailed. In practice, the measures capable of strengthening the principle of subsidiarity have long been known and discussed. In this respect, it is primarily political will that is vital. Without that will, any lasting reform of the Court is destined to remain incomplete.

Another matter “on the basis of existing texts” is the selection of judges for the Court. Your Assembly is the guarantor of the independence and quality of these judges. The Interlaken Declaration makes two explicit references to these requirements. Article 21 of the Convention lays down the conditions in which the judges perform their duties. They must, and I quote, “possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence”. These requirements have to be interpreted in the light of today's challenges: the Action Plan alludes to this, emphasising the need for the Court’s membership to “comprise the necessary practical legal experience”.

Perhaps I may, before concluding, pass on to you a few additional thoughts about the follow-up process. Without attempting to draw up a complete list, I feel that the following points are important:
- firstly, the need for concerted action and coordinated efforts by the various stakeholders dealing, to some extent in parallel, with the same issues;
- this concerted action and coordination of activities require the greatest possible transparency and exchanges of the results achieved. It is in this way that we shall manage to avoid duplication and ensure that the work is done "in full knowledge of the facts";
- another vital point is that the follow-up process should be guided by a degree of flexibility of action. The "philosophy" of the Action Plan is based on a step-by-step process. In other words, the need to adopt additional measures will have to be assessed on the basis of the results obtained by the measures already adopted and implemented. This particularly applies to the effects of Protocol No. 14, but also applies to other measures which may be taken in the short term. It is also the flexible approach that best enables account to be taken of the fact that the various measures for which the Action Plan provides are to some extent interlinked, particularly in that the adoption of one measure may facilitate and foster implementation of another.
- In this respect I can quote two examples: consistent and foreseeable case-law of the Court from which clear principles are derived may help to strengthen the principle of subsidiarity and facilitate acceptance by states of an erga omnes effect; effective supervision of the execution of the Court's judgements by the Committee of Ministers will help to reduce repetitious cases.
- The final point which I should like to raise concerns the measures which require amendment of the Convention. It is too early at this stage to decide how these measures should be applied. The ideal solution would probably be to include them in a package of reforms in a single amending Protocol. In due course, it will be necessary to weigh up the pros and cons of such an integral approach as opposed to a selective approach, which would, if need be, enable the amendments which are less controversial than others to be implemented more rapidly.

In conclusion, I am convinced that Interlaken can be the basis for a lasting reform of the Court, ensuring a balance between applications lodged and applications dealt with. We must do everything possible to achieve this aim without weakening human rights protection in Europe.

This is the challenge that we face in the years ahead, and I am wholly confident of a successful outcome.

I should like to say that I have been in this room at the Council of Europe once before, some thirty years ago when I was still a young student at the University of Zurich, and you can imagine how impressed I was to be in such a place at that time. Today I can in particular gauge the extent to which the situation in Europe has changed, and I obviously hope that it will continue to develop in the best possible way.

Thank you for your attention. I am, of course, at your disposal, today or subsequently, to answer any questions or provide any information on this subject that you may consider appropriate.