L. Wildhaber
President of the European Court of Human Rights

The place of the European Court of Human Rights
in the European Constitutional landscape

Human rights, democracy and the rule of law are a package that belongs together. The notion of democracy lies at the heart of the European Convention on Human Rights. Together with the notion of the rule of law, which provides the framework for its effective operation, the notion of democracy runs throughout the Convention guarantees. As one of the principal drafters of the Convention, Pierre-Henri Teitgen put it, in the debates leading to its adoption in 1950, the objective was to define “the seven, eight or ten fundamental freedoms that are essential for a democratic way of life”. Since 1950, there has, of course, been an enormous development, and fifty years later, the European Court of Human Rights has become the nerve centre of a system of human rights protection which radiates out through the domestic legal orders of 41 European States. Thus the Court sets common legal standards which permeate the legal orders of the Contracting States, standards which influence and shape domestic law and practice in areas such as criminal law, the administration of justice in criminal, civil and administrative matters, family law, aliens’ law, media law, property law. Over the years and through the case-law of the Court, the European Convention on Human Rights has become deeply entrenched in the legal and moral fabric of the societies of the older Council of Europe States and this same process is well under way in newer member States.

The European Court of Human Rights has always placed its relationships with the superior national Courts at the centre of the Convention mechanism. From its earliest judgments the Court recognised the subsidiary character of the Convention system, by which it meant that it was primarily for the national authorities, and particularly the national judicial authorities to secure the rights enshrined in the Convention. This of course places the burden mainly on the Supreme and Constitutional Courts, which the European Court sees as forming a partnership with it within the system of protection set up by the Convention. This is not only a practical necessity in a Convention community which now extends to 41 Contracting States with a combined population of some 800 millions. It is also a necessary element inherent in the nature of international jurisdiction when applied to democratic States that respect the rule of law. The international judge owes a degree of deference to decisions taken by national democratic institutions in full compliance with the rule of law, and although that deference will never exclude the international review completely, it will call for some measure of judicial self restraint at international level.

In an early case, concerning alleged discrimination in relation to the use of languages in education in Belgium, the Court made the position very clear. It could not, it held, "disregard the legal and factual features which characterise the life of the society in the State which, as a Contracting Party, has to answer for the measure in dispute". It could not, the Court continued, "assume the role of the competent national authorities", for to do so would be to "lose sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention. The national authorities remain[ed] free to chose the measures which they consider[ed] appropriate in those matters governed by the Convention. Review by the Court concern[ed] only the conformity of those measures with the requirements of the Convention".

That is why I hope that contacts between courts that will in the last national instance decide Convention issues and the European Court are mutually beneficial. Beneficial for national courts because they may help to clarify misunderstandings about the way the system works and at the same time shed light on problematic areas of case-law. Beneficial for us because we need to keep ourselves informed of how the issues of principle that may be determined in Strasbourg are perceived by those most immediately concerned by their application and also because we consider that the body of Convention case-law needs to be enriched, maybe even diversified, by having superior national courts addressing directly the same issues.

Before I go on let me look at the Handyside case, probably the first attempt by the Strasbourg Court to enounce clear principles for the operation of the freedom of expression and the freedom of the press under the European Convention on Human Rights. The Handyside case concerned the “little red schoolbook”, a manifestation of the broad movement of the early seventies towards the liberalisation of sexual mores. The British court found that the book contained “a great deal of advice which should not be denied to young people”. Nevertheless, on balance this could not outweigh what the British court was convinced had a tendency to deprave and corrupt.

The European Court of Human Rights stated that freedom of expression “constituted one of the essential foundations of [democratic] society, one of the basic conditions for its progress and for the development of every man”, a statement which was repeated in many later judgments. Ultimately this statement goes back to Article 11 of the French Declaration of the Rights of Man and of the Citizen of 1789 which affirmed that the right freely to express one's opinion was one of the most precious rights of man, “un des droits les plus précieux de l'homme”. In the Handyside casethe European Court continued that this right is “applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population”. Such were, the Court said, “the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’”.

Despite this ringing declaration the Court reached the conclusion that there had been no violation of Article 10, referring notably to the margin of appreciation. I cannot describe the doctrine of the margin of appreciation in detail at this point, but the doctrine is just another illustration of the subsidiary character of the human rights protection system set up by the Convention. That is to say that it is primarily for the national authorities to secure the rights and freedoms set out in the Convention.

The subsidiary character of the Convention system also explains why so much of the Convention focuses on procedural rights within the national systems. This is true not only in relation to the main procedural provisions governing access to the Court where the traditional international law requirement of exhaustion of domestic remedies directs potential applicants first to the remedies available under national law. It is also true of the normative provisions of the Convention aimed specifically at guaranteeing national procedures such as Article 13 which guarantees the right to an effective remedy before a national authority or Article 6 which sets out the due process and fairness rights in civil and criminal proceedings or again Article 5 which provides for procedural guarantees in respect of detention.

It is I believe evident that subsidiarity can operate effectively only when the appropriate procedures are available within the domestic legal systems. If the Court is going to base its determination of whether or not there has been a violation of the Convention on the assessment of the facts made by the national judicial authorities, there must have been proceedings at national level capable of producing such an assessment. That is why the Court in several cases has found violations of Article 2 of the Convention (the right to life) not on the substantive issue because there was insufficient evidence to substantiate the allegations, but on the procedural aspect. Thus the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force.

The mere fact that the authorities are informed of a violent death or an unexplained disappearance in suspicious circumstances gives rise ipso facto to an obligation under Article 2 to carry out an effective investigation into the circumstances surrounding the death or the disappearance.

The Court has repeatedly held that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 (which prohibits torture and inhuman or degrading treatment) at the hands of the police or other similar agents of the State, that provision, again read in conjunction with the State’s general duty under Article 1 of the Convention, likewise requires by implication that there should be an effective official investigation. As with the duty to carry out an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible.

When such cases come to Strasbourg, the Court is placed in the difficult position of having to operate almost as a first-instance court, and this represents a departure from the principle of subsidiarity and risks undermining the structure of the Convention system. The absence of an effective investigation will also very often render ineffective any domestic remedies that are available and thus defeat the purpose of the rule on exhaustion of domestic remedies. My message to the national authorities of all the Contracting States is the same - the rule on exhaustion is there to provide you with the opportunity to correct dysfunction in your legal and administrative systems on the basis of local remedies. Failure to make use of that opportunity by not providing for such remedies or making them nugatory may lead to a finding of a violation of the Convention, even if the substantive allegation cannot be established to the required standard of proof, and if repeated on a large scale undermines the whole system of human rights protection embodied in the Convention.

Looking at the place the Court occupies in the European constitutional landscape, the main problem facing the Court is the sheer volume of applications. The total number of registered applications is currently around 19,000. This year we expect to register some 13,500, which represents an increase of some 30% on the number of applications registered last year. This is not a temporary phenomenon. On the contrary, the Court has yet to experience the full impact of some of the most recent ratifications of the Convention.

The Court has made every effort to streamline and rationalise its procedure, but ultimately additional measures will be needed, and in this context one cannot rule out further reform of the Convention, as has been recognised in a recent report by an Evaluation Group set up by the Committee of Ministers of the Council of Europe, which called for urgent action by the Governments of the Contracting States. Any such reform should, in my view, take as its starting point what I said earlier about subsidiarity. The future of the system depends on the effective protection of fundamental rights at national level and this is but another facet of subsidiarity. If human rights are effectively protected by national courts, this should also reduce the workload of the Strasbourg Court. We should come to see recourse to Strasbourg not so much as the last instance but rather as the last resort in exceptional cases, cases raising issues whose resolution will add to the corpus of case-law, which with the Convention makes up the public order of the European constitution of human rights.

So I return to the essential role to be played by the Supreme and Constitutional Courts in the Contracting States. Today we celebrate the tenth anniversary of one such court, in the presence of a great number of representatives of other Constitutional and superior courts. We, from Strasbourg, recognise the essential role your Constitutional Court has to play. We pay tribute to what has already been achieved, we offer all the best wishes for the future and congratulate you on the excellent organisation of a very interesting conference.