Introduction to Human Rights Week 7: International mechanisms of implementation - 1st part IX. Interview with Giorgio Malinverni We are pleased to welcome Mr. Giorgio Malinverni. Mr. Malinverni, you have been a Professor of Constitutional Law and of Human Rights at the Law Faculty of the University of Geneva for almost 30 years and you have also sit in the European Court of Human Rights in Strasbourg. Here is my first question: since the public does not really know how the European Court of Human Rights works, could you give us the composition of the Court and tell us how it works? First of all, thank you very much for your welcome. The Court consists of 47 judges. There is one judge per country. Indeed, the Council of Europe consists of 47 States and it is not possible to be a member of the Council of Europe without having ratified the European Convention which institutes the Court. Judges are suggested by the member States which have to suggest a list of three people. Then, the Parliamentary Assembly of the Council of Europe elects a judge from the list composed of three candidates. The Court and its 47 judges works in four different groups. First, it works as a unique judge to rule on the admissibility of the applications. In this case, a judge is ruling alone. Then, I would say that the regular group is the Chamber. The Chamber consists of 7 judges. It means that the 47 judges are divided into five sections. Actually, there are 9 judges per section but for each case, there is a group of 7 judges. Regarding the repetitive cases or cases which are not difficult to interpret according to the Convention, it is not the Chamber of 7 judges that decides but it is a Committee of 3 judges. Because cases are not difficult, 3 judges are enough. They are just applying the well defined case law. Finally, there is the Grand Chamber. This Grand Chamber can be seized in two different ways. It can be seized by one of the parties - generally the party which succumb to the Chamber's judgment. It can either be the respondent State or the applicant. They can ask for the case to be deferred to the Grand Chamber. In this case, it is a kind of appeal to a superior body but it is not automatic. When the Grand Chamber is seized, a group of 5 judges have to decide whether it is opportune or not for the case to go before the Grand Chamber. When a complex case is submitted to a Chamber, it is possible that this Chamber does not want to take the responsibility alone to judge a case. In this case, the Chamber can decline jurisdiction in aid of the Grand Chamber. This is the composition. Most of the cases concern the admissibility and a unique judge. A Committee of 3 judges for easy cases. The Chamber of 7 judges represent the regular composition. This Chamber gives about 1500 rulings per year. It is therefore the most important composition. The Grand Chamber gives about 20 rulings per year. Today, there are three regional systems regarding Human Rights instruments which anticipates a jurisdictional control: the European system, the African system and the Inter-American system. According to you, what is original about the European system? A Court exists in the three systems but the difference is that, in Europe, the Court can directly be seized by individuals. In the two other systems - which are actually using the former system of the European Court - the individual must first seize the African or the Inter-American Commission of Human Rights. This Commission then seizes the African or the Inter-American Courts. An important change took place in Europe when the 11th Additional Protocol came into force. It merged the Court and the Commission in the sense that the Commission disappeared. The individual can therefore directly turn to the Court. Another big difference is that the jurisdiction of the Court is compulsory in the European system. In the two other systems that you mentioned, the jurisdiction of the Court is optional. It means that the State which ratifies the Inter-American Convention or the African Charter is not automatically subject to the jurisdiction of the Court. A special declaration is needed. Once again, this was the former system in Europe, before 1998. On the other hand, in Europe, the jurisdiction of the Court is compulsory. It imposes itself to States which cannot ratify the Convention without accepting - via the ratification and without having to do an additional declaration - the competence of the Court to be seized by individual and State applications. It means that the competence of the Court extends to 800 millions of people. This number is equivalent to the inhabitants of the Member States of the Council of Europe whose jurisdiction goes from Portugal to Vladivostok - in the depths of Russia - and from Norway to Cyprus. This Court really imposes itself to all the European States. I think that this is the big difference. It is natural to start by recognizing an optional competence to the Court. This system prevailed in Europe for 48 years. Then, the system became more restricting. Indeed, the competence of the Court is now compulsory. We can hope that the American and African continents draw their inspiration from what Europe did and also move to a system in which the individual application is possible directly before the Court, without going through the African or the Inter-American Commissions and where the jurisdiction of the Court becomes compulsory. You have described the evolution of the European system since 1950 and the notable progress made. However, challenges also exist. According to you, what are the principal challenges that the system has to face? We often say that the Court has become a victim of its own success. Do you agree with that? Yes, we often say that the Court is the victim of its own success. The most important challenge has to do with the number of cases before the Court. Until two years ago, there were a maximum of 160'000 pending cases. States reacted in two ways. First, by adopting the Additional Protocol number 14, which entered in force on the 1st of June 2010 and which introduced the unique judge. Before that, the questions on admissibility were dealt with by a Committee of 3 judges. They are now dealt with by a unique judge. This contributed to reduce the quantity of pending cases. Indeed, the pending cases went from 160'000 to 120'000. This is the first contribution of the Protocol number 14. The second one - but we cannot measure its effects yet - concerns the introduction of an additional condition of admissibility in Protocol number 14. This condition states that the Court should not take care of minor cases. This is the minimis non curat praetor principle. It means that the Court can declare a case inadmissible because it only causes a minor harm to the victim. But when the Court had to rule on these cases for the first time, it took a longer time than if we had to judge according to the former system. Indeed, the issue was to know what was a minor harm. The financial criteria is not the only one to be taken into account. The financial criteria also depends on States because we cannot appreciate it the same way in a poor or in a rich country. Also, some cases do not seam important but they are important in the eyes of the applicant. So, this was an issue. Mr. Malinverni, some States consider that the European Court of Human Rights often goes too far in its decisions and that it does not take enough into account the national particularities or the sovereignty of States. This is a recurrent comment made against this jurisdiction and this element was evoked during the Conference on the future of the European Court of Human Rights that took place in April 2012 in Brighton. What is your opinion on this point? I think that this is indeed the greatest difficulty encountered by the judges when they have to rule a case. The question is: how far can the Court go? You know that the Court has developed a notion which does not appear in the Convention. It is the margin of appreciation. It means that States need to have a margin of appreciation and that the Court should not become a steamroller which flattens everything where it goes and which eclipses the national particularities. At the same time, when the Court says that States have a margin of appreciation, it also adds that this margin goes together with the European control. So, when does the margin of appreciation stops and when can the European control start? The Brighton conference was mainly about that. We feared this conference a lot because the English wanted to hamper the Court. In the end, they did not manage to do so. Nevertheless, they managed to make the margin of appreciation appear in the Convention's preamble. Let me tell you that the judges do not agree with each others regarding these questions of "How far can we go?" and "Where should we stop". If you have a look at the dissident opinions on the rights enshrined in Article 8 to 11 in which the Court has to rule on the necessity of interference, you will see that the judges often disagree. Some think that States should deal with these issues themselves. Others think that the Court should intervene. This question arose, for example, in the famous A.B.C v. Ireland case regarding abortion. We talked about the margin of appreciation. One of the criteria allowing to measure the margin of appreciation is the European consensus. Do the majority of States have a legislation which goes in a way or in another? In Europe, 5 or 6 countries are forbidding the voluntary termination of pregnancy, except in exceptional circumstances: Ireland, Monaco, San Marino and Andorra. Therefore, a European consensus existed in favour of the voluntary termination of pregnancy, at least until the 12th week of pregnancy. Nevertheless, the majority of the judges - I was in the minority and we wrote a dissenting opinion - believed that we should not intervene. The Court should not intervene in such a sensitive subject as the voluntary termination of pregnancy. Even though Ireland was out of the European consensus - it was part of the minority of States - the Irish citizens voted three times on this subject - there were three referendums. It was written in the Constitution. We could not go against the will clearly expressed by the Irish people. But you see, even in this case, a majority of judges agreed with that, while a minority thought that the women should also be protected. Judges always have trouble with that: as you said it, they have to respect the sovereignty of States but, at the same time, the Court's main task is not to satisfy States. This is not the judges' task. Their task is to protect the individuals and to protect fundamental rights. After all, States accepted the system by ratifying the Convention. By doing so, they accepted the possibility for the Court to sentence them. Some States, such as the United Kingdom which convened the conference in Brighton, say: "yes, we ratified the Convention in 1950 but the Court interprets it now in a contemporary way and infers some rights that were not provided at the beginning". A well known example concerns the interpretation made by the Court about Article 6 of the Convention which guarantees the right to a fair trial. According to the text of the Convention, this right only applies for civil cases and for criminal cases. And yet, with a broad interpretation of the notion of civil contesting, the Court has included all what comes, according to State Parties' law, under administrative law. So, the administrative dispute fell in the scope of application of Article 6 because of interpretation. Let me give you another example: In 2010, the Court ruled on the request of two Austrian homosexuals who complained about the impossibility for them to get married in Austria because gay marriage was not allowed, as it is now in France. Gay marriage and civil solidarity pacts did not exist. When the case was taken to the Court - I was in this section - the two people invoked a violation of Article 12 which guarantees the right to marriage. Article 12 clearly states that a man and a woman have the right to get married from the age of consent on. On the face of it, we could say that it excludes same-sex marriage. However, the applicants based themselves on the English text which states "men and women", in plural. Men and women have the right to marry. So, they said that the English provision - not the French one - could be interpreted as men can marry each other and women can marry each other. Furthermore, they based themselves on Article 9 of the European Charter of fundamental rights - the Nice Charter - which also guarantees the right to marriage without specifically mentioning men and women. They said that Article 12 could be interpreted in the light of Article 9 of the Charter, based on the English text. Long and fascinating discussion. In the end, the majority considered that we could not depart from Article 12, which is clear and talks about a man and a woman. It would have been a revolution to do so. Indeed, it would have meant that, according to the Court, States have the obligation to provide same-sex marriage. Of course, the Court did not want to take this plunge. One last question: According to you, what is the major contribution of the European system for the protection of Human Rights? Well, I think that there are several contributions. I talked earlier about a steamroller. The Court should not become a steamroller which levels everything. It is however the emergence of a kind of European common law. Some jurisprudential notions are created. For example, the notion of family cannot only be based on the definition given by the legal order of the Contracting States anymore. The Court provided a definition of the family. These notions are now imposing themselves. I think that this is a first conquest. Judgments made by the Court have a tried effect. It concerns the State party to the dispute. Judgments are also interpreted. It means that the judgment made by the Court about a State is also valid for all the States. That is why, if the Court had said that Article 12 of the Convention enshrined same-sex marriage, it would have been a real revolution. There is this creation of independent notion; of European notion; of European value. We could also add that, thanks to the case law of the Court and thanks to the additional protocols to the Convention, Europe is now a State in which death penalty has totally disappeared. It is funny to see that because death penalty was still applied in several States when the Convention was written in 1950, the authors of the Convention did not dare prohibiting death penalty in Article 2 which guarantees the right to life. That was done afterwards. First, thanks to the adoption of a protocol abolishing death penalty in times of peace. And, a couple of years later, thanks to another protocol prohibiting death penalty anytime, in times of peace and in times of war. I think that Europe is the only continent on which death penalty is totally banished. So, this is a great success. I would also say that one of the fundamental contribution is that the people realized that when their Supreme Court gave a judgment, they still have a possibility. I think that this is extremely important, especially for the countries of Eastern Europe which, we have to admit, have not reached a similar democracy as the one of ancient Europe. For example, when someone disappeared during the second war in Chechnya and that the family applied to the Courts, nothing happened. This was a quite frequent phenomenon. I think that for these families - who were disappointed by the behaviour of the national justice - it was certainly a huge relief to know that they could still apply to the European Court in Strasbourg, as a last resort.
