Laurence Grech interviews Luzius Wildhaber, president of the European Court of Human Rights

The president of the European Court of Human Rights, Professor Luzius Wildhaber, was in Malta on a two-day visit earlier this month. He gave two public lectures and also called on the President and the Prime Minister, accompanied by the Chief Justice, Dr Vincent Degaetano, and by Dr Giovanni Bonello, the Maltese Judge on the European Court of Human Rights, set up by the Council of Europe.

Professor Wildhaber also gave the following interview to The Sunday Times:

How would you describe the human rights situation in Europe today, considering in particular the rights of refugees/illegal immigrants and ethnic or religious minorities? Has the gradual economic and social integration of Europe, with the European Union now on the verge of its greatest expansion ever, "harmonised" respect for and upholding of human rights?

What is the degree of compliance, generally speaking, with the judgments of the European Court of Human Rights (ECHR)? How big has the Court's contribution been in the establishment and strengthening of democracy, human rights and the rule of law in Europe?

The first question seems to imply that there are more and more problems: you speak of rights of refugees, illegal immigrants, ethnic or religious minorities. We seem to have problems that we might not have had earlier. If you look at the whole expansion of the Council of Europe, and particularly since 1989, then of course you have to say that we look at the situation of countries that we completely ignored during the existence of the Iron Curtain.

It is wonderful what progress some of these countries have made. Some others are at the beginning of a development that we hope will be fruitful. But it's true that we see lots of unresolved questions in many of the member states. The Court also has as its task to have an evolutive jurisprudence and to respond to perceived changes in society values. Therefore we will pick up on new problems or new problems will be brought to us.

We do have obvious problems with refugees and immigrants. The reason is that the ECHR has a tendency to look at individual applicants and underneath there is a whole stream of migration and public opinion in our countries does not always perceive both sides of this, and it is difficult to make it clear.

Since the countries of the ex-Soviet Union and the Balkan countries have become members, we have of course a much greater realisation of the problems of ethnic minorities and classes, and in recent times we have also seen the problems that stem from the immigration of religious minorities.

As a court we have to look into all these problems. I am overall not overly pessimistic because I think we have made inroads, particularly in the new member states, and this is a very hopeful development.

About the "harmonised" respect for human rights, I think our court is a good instrument for upholding human rights in a complex society and in a Europe of 44 member states, which we have now, because we don't necessarily go for a uniform legal approach in all the member states.

We accept that this is a subsidiary system and domestic authorities in courts apply the human rights guarantees and that the legal systems can be different. So we speak of subsidiarity and we say we aim at achieving minimal standards. Therefore there is a harmonisation at the level of achieving minimal standards. But at the same time there is, and there continues to be, legitimate variety in all this.

The degree of compliance with the Court's judgments has, overall, been very good. This is a system that has functioned on the basis of peer pressure, transparency, media control to a certain extent, non-governmental organisations helping along... But the states only pledge to observe the judgments that concern their respective state, and our caselaw is as binding a precedent as is the case in national courts. Of course we will apply similar principles in similar situations.

Overall, the Court's judgments have been followed. Damages have been paid; the amendment of legislation has usually taken somewhat longer, but the states have also complied with the need for structural changes. They have sometimes taken years - they have not always been enthusiastic at first about the obligations that seemed to result from our caselaw. But overall I think we can be very pleased.

The Court's contribution to the establishment and strengthening of democracy and human rights and the rule of law has certainly been considerable, because we have played the role of a beacon. But we cannot do everything on our own; we depend on national authorities, the national legislatures, the national courts.

What we can do is to make clear their obligations in this respect. I imagine that we have managed to do that. But we remain in a subsidiary system dependent on the member states and their participation in good faith for the effectiveness of the system.

Gradual development of caselaw

Which are the areas where the Court, under your presidency since 1998, has broken new ground?

This is perhaps somewhat difficult. A court like ours sometimes, but rather rarely, says that it will modify its caselaw, so it will overrule earlier cases. This we have rarely done. There have been some striking cases where the Court has revisited earlier caselaw.

There was a Moroccan drug trafficker who had been held in police custody in France and came out of it, as was established by several medical experts, with haematomas all over his body. He had been treated in a way that the Court qualified as torture. And the Court added that earlier it might have spoken of "inhuman and degrading treatment" only, but the treatment had been so serious that, in the light of the changed standards, it could only be qualified as torture. In other words, the Court lowered the threshold beyond which inhuman and degrading treatment could be considered to amount to torture.

There have been other such cases. Probably the most important development is gradual. Human rights law is developed gradually. It is a process that takes place on many fronts, and it's often not the very big case that makes the greatest difference.

For instance, when we look at the Maltese cases, it is not that we have fundamentally rewritten the Maltese law, but you and all the other member states are part of this process of gradual improvement, rethinking certain areas, rewriting certain areas. And so we are, in a way, in our daily caselaw, slowly breaking new ground, but sometimes it is not very visible.

Recently we had a case on transsexuality, where we expressly overruled earlier caselaw by finding that states have a positive obligation to give legal effect to the new sexual identity of transsexuals. Sometimes things happen that way, but very often it is just consolidating what has already begun.

We have not always agreed how we should strike the balance between the legitimate interests of the community on the one hand and the individual rights of individual applicants on the other. Human rights caselaw is a constant balancing process between different interests at stake and there may well be differing views within the Court.

We have now before us cases on night flights approaching airports; the prohibition of the Islamic fundamentalist party in Turkey; the possibility for a child, abandoned at birth by her mother, to learn the identity of its natural mother without the latter's consent. These are some of the pending cases on which there may be legitimate differences of opinion in the Court. That may be the case also in future.

It is an error to think that human rights are, in a way, pre-defined, that everything is clear. It is not so. Human rights is a dynamic process of giving meaning to notions that are quite controversial and it is the Court's task to help in the genesis of that process, so we may do things that may not be uncontroversial.

Aren't there areas of overlap or duplication between the "jurisdictions" and competences of the European Court of Human Rights in Strasbourg and the European Court of Justice in Luxembourg, especially since the European Union is promoting is own Human Rights Charter?

Will this create a distinction between human rights for EU nationals and human rights for non-EU nationals? Do you foresee the day where the two courts could merge, at least insofar as human rights proceedings are concerned?

Up to now we have had a pragmatic co-operation between the two courts that has functioned very well. The Luxembourg court has for more than 30 years now held that human rights guarantees must be considered to be the general principles of European Communities law and it has looked to our caselaw in shaping its own caselaw.

So our mutual endeavour has been directed towards achieving a harmonised caselaw, and this is how it should be. Because it doesn't make sense to say that the Luxembourg decisions are binding, the Strasbourg decisions are binding, then you come up with different results and tell the states that they are bound by both results, and tell the individuals that the results may be different. That wouldn't make sense.

The best way of co-ordinating this, in my view, would be for the European Communities to accede to the European Convention on Human Rights. This is being discussed now and would obviously eliminate future conflicts. The Luxembourg court would then be bound to apply the general principles of the European Convention.

Even if you incorporate the European Convention in the European Constitution, there will be two courts, so there will always be the possibility of different approaches by the two courts. Our Court has a subsidiarity approach, which leaves a margin of appreciation to the states. The Luxembourg court tells the national courts what European Union law is, which leaves no room for a margin of appreciation. Therefore there may be different development.

As long as the two courts work in harmony as they do now, and we try to adjust our caselaw to each other, I do not see too many problems. If the Communities accede to the European Convention on Human Rights, I think that the dangers would really be lessened.

I do not see a possibility of the two courts merging. They are both overburdened. The thought of merging the two courts may look intellectually attractive, but it would mean a reduction of the judicial protection of the individual.

Malta showed the way

How many other states have incorporated the European Convention of Human Rights in their national legislation, as Malta has done? How many European countries are still outside the jurisdiction of the ECHR? What are the conditions for those left out to join?

Malta is probably the only country in Europe in which judgments of the European Court of Human Rights can be executed and enforced directly as if they were judgments of a foreign tribunal. Do you find this a positive development? Does knowing that specific enforcement of a judgment is posisble in a local jurisdiction alter the Court's standpoint on what it is entitled to order states to do and what it is not entitled?

Within the Convention community, some states have a so-called monist system and have applied the Convention directly; other states have a so-called dualist system, where the Convention had to be transformed into statutory law before it could be applied. That process is pretty much complete, because first the Scandinavian states, then the UK, incorporated the Convention into their domestic law. You in Malta were very prompt (1987) in that development and you must be congratulated on that. One could say that you have shown the way for the common-law countries.

The only country that has not incorporated the Convention is Ireland. All the new member states in Central and Eastern Europe have, in principle, made the Convention directly applicable in their system. So they have incorporated the Convention. But there it is very often a question of the awareness of the national courts of what has been decided in Strasbourg, or sometimes it is also a question of the willingness to accept Strasbourg law.

The approach adopted in Malta, whereby our judgments can be executed and enforced directly, is highly interesting, but it does not resolve all the problems. Our judgments are normally declaratory. We say that in the case of X or Y, the guarantees of some article of the Convention have been violated or not violated. We do not say that this or that provision of the national legislation is null and void. We cannot do that. Nor can we overturn a national court decision. That is up to the state.

But we do award compensation - for pecuniary and non-pecuniary damages - and costs for legal fees. Of course the states are bound to pay these sums to the individual applicants, but sometimes the root of the problem is, for example, legislation which needs to be repealed or amended. And so the Maltese formulation may not resolve all those problems.

This does not change our perception of what states should do. How the states implement our decisions is within their discretion. Naturally, when states do not pay compensation promptly, they also have to pay interest on the sums awarded.

We have lately been hearing sensational reports about human cloning and ground-breaking human reproduction techniques. Has the Court of Human Rights ever pronounced itself on such matters?

Cloning has not been before the Court as such. Human reproduction techniques have come before the Court in various ways - as issues establishing maternity or paternity. We now have before us a case where erroneous treatment in a French hospital led to the death of a six-month-old foetus and so we might have to say whether the Convention's guarantee of the right to life is applicable in such a case or not. We get more and more such cases.

In view of the change in society's values in these fields - including the acceptance of such techniques - it is inevitable that we will have cases of this nature.

The growing threat of international terrorism has led various governments to take increasingly severe measures, some of which, like the powers of investigation, arrest and detention, may infringe on individual human rights. Has the Court ever been called to pronounce itself on such measures?

We have already had quite a significant number of anti-terrorism cases. This is not surprising. We have the Basque ETA situation, the Northern Ireland situation, we had domestic legislation, as in Germany, regarding how and in what conditions telephone tapping would be admissible. We have had various aspects of such problems before us, and one can see that more is to come.

This is inevitable, since there has been legislative reaction in various states to the threat of terrorism.

You cannot, as a member state, plead internal security needs to evade obligations under the Convention. That is not the Convention system. The Convention system is that the state will plead its needs - and changes of legislation as the case may be - and then we will take that into consideration when we balance the interests of the community against the interests of the individual. But there will always be some balancing exercise under our system.

Child abuse cases

Child abuse has become a very sensitive issue in recent times, with a special focus on paedophile priests. Is there a danger that in certain instances the rights of the presumed offender are seriously threatened? On the other hand, are there enough safeguards for the rights of the child to be protected and for adequate compensation (if that is the word) to be given in cases of proved child abuse?

This is very difficult, because emotions are very raw in these cases. We have had before us various aspects, and we will continue to have such cases. One aspect is whether the accused has a right to cross-examine witnesses, including the alleged victims of such abuse.

For instance, should young children be questioned directly in a court procedure? Should they be questioned in a protected environment? Should there be videos of the questioning that can subsequently be brought before the court?

There are several cases pending before the Court. In a Swedish case that had full video coverage, our Court accepted that this was a sufficient guarantee for the fairness of the procedure. But we have had another case where we said that the procedure did not sufficiently respect the rights of the defence. These are very difficult questions and we unfortunately get more and more such cases.

Safeguards for the child must be, above all, domestic safeguards. However the Court has held that states have an obligation to ensure that individuals are not subjected to ill-treatment by private individuals and that, in particular, in relation to children, reasonable preventive steps should be taken.

Malta has been a member of the Council of Europe since 1965, and therefore has been represented on the ECHR for almost 40 years. How would you judge Malta's contribution to the Court in these four decades? Has the number of cases against Malta been normal or unusually high?

Malta is now one of 44 member states, so one cannot say that any member state can make a particularly great contribution. One could say that member states make a major contribution because they have a high number of cases, so they help us to build up our caselaw.

This has not been so much the case with Malta. The number of cases against Malta has definitely been on the low side. We have had the Demicoli case, where the applicant was tried and convicted by the House of Representatives of breach of privilege, as a result of an alleged defamation of members of the House. The Court found that, in conducting these proceedings, the House failed to satisfy the requirement of impartiality. I am told this could not happen in the same way again.

We have had a series of four cases about the powers of magistrates with respect to detained persons on remand and the power to order their release, and the delay in such proceedings beginning with the Aquilina case and the recent Kadem case. I am told that legislation is either pending or has already been adopted to set this right and to conform to the Court's caselaw.

This is how it should be. We point to certain problems that exist, the state responds by legislating amendments. That is fine.

You have had some very articulate judges, like the one who is sitting now (Dr Giovanni Bonello), who is very articulate and helps us identify not only the Maltese problems. Each one of us does not necessarily focus on his own domestic law. We really contribute to a European law. The national judge sits in cases involving his own country and explains, as objectively as he can, the situation of the domestic legal system and then we sit together and deliberate in the light of that explanation.

Backlog of 30,000 cases

How expensive is it for an applicant to have his case determined by the ECHR? What sort of case-load does the Court have to deal with? Are any reforms in the workings of the Court being envisaged?

We do have a legal aid system for indigent persons, but it comes into being once a case has been formally notified to the government. The costs are taken into account when we award compensation. We are an inexpensive system. Sometimes we wonder whether we should make it more expensive.

The expense will obviously depend on whether a case is declared manifestly ill-founded by a three-judge committee, or whether a chamber of seven judges will decide on the merits, or whether a case will even go to the Grand Chamber of 17 judges.

We have a caseload that has increased very rapidly. It is going up by about 30 per cent a year. We began in 1998 with a backlog of 7,000 cases from the previous system, a lot of them complex cases requiring a considerable investment of time by registry staff and judges.

We have now organised our case management so that we are trying to process cases as rapidly as we can. At present we have about 30,000 cases pending. We also have 30,000 cases which came in last year alone.

We cannot possibly handle 30,000 cases on the basis of well-reasoned decisions. We declare about 90 per cent of cases inadmissible, for example because they concern facts that are prior to the ratification of the Convention by a state, because the complaint has been submitted too late, because the applicant has failed to exhaust domestic remedies or because the application is otherwise manifestly ill-founded.

We have streamlined our working methods constantly over the past years, and we are at the point where we must accept that we cannot go on forever like this. We will just continue accumulating a bigger backlog, and this will further delay the cases. If we continue to have unrestricted access of individuals to the Court we will eventually find ourselves in a situation in which we are not able to respond in less than five or six or even more years.

So we are discussing whether there should be a different system, whether we should have summary proceedings for the manifestly ill-founded cases and for what we call repetitive cases. We get categories and classes of cases where systemic or structural deficiencies are revealed. We have had literally thousands of Italian civil length proceedings cases and we have discovered that half the member states have similar problems with the length of proceedings.

There is a sizable number of states that have problems because they do not always or effectively execute final and binding court judgments. There are various other such examples.

Now we could either try to handle that by summary proceedings, or else we should perhaps say that in certain respects this type of case should be considered as a problem of execution of the Court's judgments, so that the Committee of Ministers of the Council of Europe, which supervises the execution of judgments and the monitoring system of the Council of Europe should look into it so as to avoid thousands of more or less identical or repetitive cases.

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