This content was published in the period between 9 July 2021 and 30 November 2021
Speech by Mr Morgan Johansson at the seminar on the topic of the relationship between the European Court of Human Rights and the National Courts
Stockholm, 28 October 2021
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Excellences, Ladies and Gentlemen,
First of all, let me say that I think we are all truly happy to be able to gather like this again! It was a long time ago, and I think we have all looked forward to gatherings like this. And to start up with a seminar on human rights, it can’t be better!
On behalf of the Swedish Government, it is a great pleasure for me to welcome the President of the European Court of Human Rights, President Robert Spano, and the Swedish judge at the Court, Judge Erik Wennerström, to Sweden and to this seminar.
Also, a special welcome to the other panellist members, the President of the Swedish Supreme Court, Justice Anders Eka, and the President of the Swedish Supreme Administrative Court – and also the former Swedish judge at the European Court of Human Rights – Justice Helena Jäderblom.
The seminar today is organised by the Government Offices, Department of Foreign Affairs, on the occasion of the visit from the European Court of Human Rights. It will focus on the topic of the interplay, or dialogue, between the European Court of Human Rights and the national courts.
It is a topic that is both interesting and indeed very important to reflect upon. I’m going to do a few introductory remarks on that.
It goes without saying that human rights, and the respect for rule of law, are of greatest importance in any democracy, and protecting these fundamental values and ideas are becoming increasingly more important when human rights are challenged. And there are challenges to these concepts today.
Thirty years ago, Europe was rejoicing over the fall of the Berlin Wall. The symbol of oppression had fallen apart, opening new horizons and hopes not only for Germany but also for the whole of Europe. To many, this event appeared to be the unchallenged victory of democracy.
Also for mer. I was 19 then, and I remember very well how I and some friends in the summer om 1990 went down to Berlin to see with our own eyes what was happening. The wall was still there, it hadn’t been demolished yet, but we did our part in that, in tearing it down. We carved out each of us a part of the wall, a part of a brick, to keep as a memory, and I think I still have mine stored away somewhere.
The fall of the Berlin Wall was the biggest political event in our youth, yes perhaps in our lives. It marked an important step in the ending of the Cold War, and the rise of strong democratic movement in many states in Europe. Several of the states in Eastern Europe became parties to the convention soon thereafter.
But, as remarked so often and by so many, democracy is not something that is conquered in a nation, once and for all, by its people. It has to be vigorously protected, it has to be fought for, and it has to be re-conquered by every generation.
Today, it is obvious to most of us that democracy in Europe is facing many difficult challenges. The threats to the full enjoyment of fundamental rights seem to have become more present than they have been for a very long time. The negative development in the respect for the rule of law and fundamental rights is worrying. One could for example mention, measures against the independency of the judiciary, as well as the independent media, attacks against LGBT communities and other minorities. We’ve seen it in countries like Russia and Turkey for a long time, but now, in recent years, we also see problematic developments in EU-countries like Poland and Hungary.
Yesterday, I heard that the European Court of Justice has ordered Poland to pay the European Commission a daily penalty payment in an amount of 1 million euros, because Poland has, as they say: failed to comply with the measures ordered by the Court to avoid serious and unrepairable harm to the legal order of the European Union.
It is a dramatic decision and dramatic words, but I think it is important to take a firm stand. The European Union has to put its house in order, when it comes to rule of law.
And in this context, the value of the European Convention on Human Rights cannot be over-emphasised, and the important work of the European Court of Human Rights cannot be highlighted enough.
But, of course, upholding human rights and the rule of law is not only the duty of the Strasbourg Court. It is also an important task of the national legislature, the executive and the national courts.
Sweden has a long history of a strong commitment to democracy, human rights and the rule of law. We are also a strong supporter of the convention system and frequently advocate these ideals and values in the international debate.
Sweden was one of the founding states of the Council of Europe and one of the first states to ratify the European Convention on Human Rights in 1952. The Convention has also formed part of Swedish domestic law since 1995, and according to a provision in our Constitution – enacted in 1995 – no law or other regulation may be adopted which contravenes Sweden’s undertakings under the European Convention on Human Rights.
As mentioned before, our efforts to protect human rights and the rule of law is an ongoing project. Partly because of the worrying development in some states in Europe, the Swedish Government appointed a cross party commission of inquiry in 2020 with the task to consider the need to strengthen the protection of democratic structures and the judiciary and long-term independence of judges. This commission will, for example, examine if the Constitution ought to be amended with new provisions regarding the age of retirement for Justices of our supreme courts. It will also consider if it is necessary to make it more difficult to amend the Constitution, for instance in parts that are essential to the protection of our democratic ideals.
The commission will present its report in the beginning of 2023, and I’m glad to say that the chairman of this commission is the president of the Swedish Supreme Court, Justice Anders Eka.
One cannot overstate the importance that the European Court of Human Rights plays in protecting fundamental rights. Its interpretation of the Convention is of great importance to maintain and to promote the ideals and values of democratic societies in Europe. The Court oversees that human rights are upheld for the 800 million Europeans in the 47 Contracting States. Last year, the 47 judges delivered just over nineteen hundred judgments and more than thirty-seven thousand decisions. It is a staggering number of decisions that shows the enormous amount of important work that the Court is doing.
I would strongly argue that the European Court of Human rights is probably the most effective international human rights court in the world. And I welcome this opportunity to reaffirm Sweden’s deep commitment to the European Convention on Human Rights and the Strasbourg Court.
That said, we also must acknowledge that there are circumstances challenging the Court’s possibilities to reach its full potential in terms of efficiency. One of the greatest challenges is the Court’s caseload.
A small number of States are responsible for a very large amount of the total cases in the Court’s backlog, and for the influx of new cases. Last year, the Court also saw an influx in applications and an increase in applications requiring examination by the Chamber. The number of applications pending also increased. Today the pending cases at the Court is around 65 500. Many cases are so called repetitive cases; that is cases with the same underlying problem that has already been adjudicated by the Court. This is not acceptable.
To tackle that underlying problems with the heavy caseload, the Contracting Parties need to focus more on national measures to avoid and to remedy potential breaches of the convention, that is to focus on
- implementation of the Convention at national level,
- the full, effective and prompt execution of the Court’s judgments, and
- establishing and improving domestic remedies.
And here the interplay, or dialogue, between the European Court of Human Rights and the national courts is of importance. The dialogue has the potential to enhance the effectiveness of the enjoyment of the rights under the Convention by contributing to the effective implementation of the principle of subsidiarity.
It is, as stated before, the States that have the primary responsibility to secure human rights protection and to provide remedies when that protection breaks down. This primary responsibility is always subject to the Court’s supervision. This lies at the very heart of the principle of subsidiarity, which now also is highlighted in Protocol No. 15, which recently came into force.
This means that the result of the application of the principle of subsidiarity may never be that human rights protection is weaker in some States than in others.
In this context, I would also like to mention Protocol No. 16. This protocol enables the highest national courts and tribunals to request the Strasbourg Court to give advisory opinions on questions of principles relating to the interpretation or application of the rights and freedoms defined in the Convention or the Protocols. This protocol aims to strengthen the dialogue between the Court and the highest national courts. Sweden has not yet acceded to that protocol, but work is currently under way within the Ministry of Justice to consider the question of accession.
Having said this, if Contracting Parties fail to fulfil their responsibilities, it will clearly affect the role of the Court and the extent of its supervision.
At last, I hope that this seminar will further enlighten us and provide us with more perspectives on the relationship between the Strasbourg Court and the national courts.
With this I like to wish you all fruitful discussions and a pleasant day in Stockholm.
I hereby give the floor to the Director-General for Legal Affairs Carl Magnus Nesser.