Thank you very much for your invitation to speak about the current condition of human rights in Europe. I will divide my comments into two parts. Since we are in Brussels, I will start with a few remarks about the respective roles of the Council of Europe and the European Union in the field of human rights. I will then refer to some of the most topical human rights challenges which face Europe today.
On the first subject, I will start with an anecdote.
Recently I caused a storm in a teacup referring to the European Commission and Belarus in the same sentence. I do not know how they took it in Minsk, but I can tell you that my comments – at least as reported - did not go down very well here in Brussels.
Let me explain.
The remarks were made in the course of my annual speech on the state of the Council of Europe during the January session of our Parliamentary Assembly. I spoke about the state of human rights in Europe and, more specifically, about the prospects for the accession of the European Union to the European Convention on Human Rights.
What I said was that the accession of the European Union would end the paradoxical situation in which only two executive powers in Europe escape the scrutiny of the European Court of Human Rights. They are the European Commission and the Government of Belarus.
Now, I did not suggest that there were any similarities between the European Commission and the authorities in Belarus except for two facts: they are both geographically in Europe and neither can be taken before the European Court of Human Rights. That, ladies and gentlemen, is a fact - a paradoxical fact, as I said in my speech - but it caused a flurry in the tealeaves.
I should therefore like to use this opportunity to reassure my friends at the Commission that I have nothing but respect for their commitment to human rights - which is clearly not something I am ready to say about President Lukashenko.
But some of the oversensitive reactions to my comment did rub in the point I was making.
To start with, I find it odd that the mere mention of the fact that people cannot complain against the European Commission, or any other European Union institutions, before the European Court of Human Rights, is perceived as out of order.
In the past, European Union officials have told me that this is a non-issue, because the EU is already bound to respect the rights guaranteed by the European Convention on Human Rights on the basis of the Treaty of Amsterdam, and that the European Court of Justice is the one to oversee compliance.
This is of course true, but the question is whether it is enough.
With all due respect, this logic could be compared to a man who drives a car without a driving licence, but says that he is determined to respect the Highway Code, and that if he does not, a member of his family will rebuke him.
He may well be the best driver in the world, but that is beside the point. If there are rules, they must apply equally to all. And the rule for all executive powers in Europe (except “you-know-who” ) is that they are obliged to respect human rights and accept the scrutiny of the European Court of Human Rights.
Before I am accused of committing a new lèse majesté, I want to make it clear that in comparing the European Court of Justice with a member of the driver’s family, it in no way implies any doubt about the integrity, the independence and the competence of the European Court of Justice. It merely illustrates the point that when this Court rules on cases involving human rights and the European Commission or any other EU Institution, it does so as a part of the same institutional framework in which the alleged violation of human rights has taken place.
Those reacting to my words also argued that it was politically unwise to mention that EU accession to the European Convention on Human Rights would submit EU institutions to the scrutiny of the Strasbourg court. I was told that this would cause particular difficulties in countries like the United Kingdom because it would strengthen anti-EU sentiments among the public.
Now this is an argument I really have a problem with, and I can tell you that I speak on the basis of first-hand experience. After being a candidate in 11 Parliamentary elections and 28 years as a Member of Parliament, I think that I can claim to know something about public opinion in the United Kingdom, and I can tell you that very few people in the UK would object to officials in Brussels being bound by the same rules as officials in the UK. In fact, I would even suggest using this fact as one of the arguments in the campaign for the ratification of the Lisbon treaty, not only in the United Kingdom but in all EU member states.
The fact is that there is a strong and convincing case for EU accession to the European Convention on Human Rights. The arguments, as they were identified by the Convention entrusted with the preparation of the now defunct EU Constitution, are the following:
First, the accession would strengthen the protection of European citizens who are presently denied the right to bring applications against the institutions of the European Union before the Strasbourg Court. There is no reference to Belarus here, but it makes the same point.
Second, it would avoid a situation in which there would be alternative and potentially competing and conflicting systems of human rights protection within the European Union and between the EU and the rest of Europe. Dual protection systems always undermine legal certainty. There is always a risk of different catalogues of human rights being applied by the European Court of Human Rights and the Court of Justice, each acting within its own context. The risk of divergence is not just theoretical. It has already occurred and may pose problems.
Third, it would reinforce the credibility of the European Union in the eyes of third countries if it accepted a critical review of its human rights conduct by an independent body.
Fourth, the accession would enable the European Union to play a full role in proceedings before the European Court of Human Rights if those proceedings concern EU law.
And finally, the accession would eliminate a new dividing line on the European continent. The human rights acquis of the Council of Europe and the common standards defended by the member states of the Council of Europe and of the European Union are the same. An accession is not in contradiction with the right of the EU and its member states to offer higher levels of human rights protection in certain areas. On the other hand, a dual system of rights poses a risk not only to the fundamental principle of universality of human rights but also the inherent danger of the re-emergence of a "Europe à deux vitesses" in an area - common human rights standards - where such divisions must not exist.
These arguments are from documents produced by the EU Convention and I subscribe to them fully.
My introduction was not meant to leave you with an impression that the Council of Europe has a problematic or even a competitive relationship with the European Union - on the contrary. I believe that the accession of the European Union to the European Convention on Human Rights would turn a relationship which is close, good and co-operative into an even better and more effective one.
Unlike some who argue that the European Union should leave human rights issues to the Council of Europe, I believe that this is neither realistic nor desirable. The European Union has gradually taken over from its member states some very important competences in areas directly or indirectly related to human rights. That is why it not only can, but should build up its capacity to protect – but also to respect – human rights. That is why I welcome the new Fundamental Rights Agency, at which the Council of Europe is present, provided that these positive developments are coupled with accession to the European Convention on Human Rights. This should not happen at some time in a distant future, but as soon as possible. That is why I believe that preparatory talks should begin without waiting for the ratification of the Lisbon Treaty by all EU member states.
I also encourage the European Union to act, and if necessary legislate, in all areas where our respective mandates coincide – but they should do so by building on the Council of Europe acquis and the standards agreed by the 47 member states of the Council of Europe, and not by simply duplicating them. This is the logic behind opening the Council of Europe Conventions such as the Anti-Cybercrime Convention and the Convention on Action against Trafficking in Human Beings to accession by the European Community.
The principle guiding our individual and joint efforts should be what we can do to promote human rights and not what human rights can do to promote us. And there is plenty that needs to be done.
Only a few days ago, I spoke at the High Level Segment of the UN Human Rights Council. Since the subject of my speech concerned challenges to human rights in Europe, I will now use this opportunity to sum up the message which I delivered in Geneva.
The first challenge we face is the need to protect human rights in the context of the fight against terrorism.
Ever since September 11, there have been voices, on the other side of the Atlantic, but not only there, arguing that human rights are an obstacle in the fight against terrorism.
This is not something which the Council of Europe will accept. At the Council of Europe we fight terrorists because they want to destroy everything we stand for and everything we believe in. But our activities to strengthen co-operation in law-enforcement and to help the victims of terrorism are not inconsistent with our insistence on respecting the human rights and fundamental freedoms which are protected by the European Convention on Human Rights.
If we want to defeat terrorists, we must remain faithful to our ideas and our values. People around the world must know that we are right, and that terrorists are wrong - that we are just, and that they are criminals. We cannot win a conflict of values with secret prisons, with torture, with inhuman and degrading treatment, with people being kept in legal limbo and deprived of safeguards which are the foundation of our system of democracy and justice.
These methods are dangerous because they are exactly what terrorists want. They want us to give up the most fundamental, defining features of our freedom.
Those who argue that secret detention, torture and the denial of the right to a fair trial have stopped a number of terrorist attacks, should have the moral and intellectual honesty to consider also how many future terrorists these abuses of human rights have helped to recruit.
I took note – with not too much surprise, I must say – of the recent admission by the British Foreign Secretary that so-called “rendition flights” did indeed pass through British territory. I want to give a lot of credit to the Government of the United Kingdom for coming out with their admission as soon as they were told about it by the United States of America. I also wholeheartedly support the pledge by the Prime Minister of the United Kingdom, Gordon Brown, who intends to put in place some essential procedures to make sure that such violations of human rights do not occur in the future. The most appropriate way to do so, of course, would be to support the proposals which I presented to the 47 Council of Europe Governments nearly two years ago.
In this context, I would also mention the issue of the United Nations and European Union blacklists. The Parliamentary Assembly of the Council of Europe has strongly criticised the procedures used by the United Nations Security Council and the European Union to blacklist individuals and groups suspected of having connections with terrorism. The criticism is based on the lack of procedural fairness and the violation of basic rights. Our Parliamentary Assembly called for a review of these lists in order to “preserve the credibility of the international fight against terrorism". It also stated – clearly – that this kind of procedure is "unworthy" of international institutions like the European Union and the United Nations.
In fact, the blacklisting procedure may be incompatible with the obligation of our member states under the European Convention on Human Rights. Personally I believe that our Convention should be considered ius cogens, and that states which are parties to the Convention must balance their obligations under the UN Charter with their obligations under the Convention.
My next point is about the abolition of the death penalty. The year 2007 marks a decade without the death penalty in the member states of the Council of Europe. It means that no one has been hanged, poisoned, decapitated, electrocuted, shot or otherwise killed by criminal justice systems during the last 10 years anywhere in Europe except in Belarus, which is not a member of the Council of Europe.
Achieving continent-wide abolition was not easy. It took courage and persistence and much persuasion. Today, it is widely accepted that the death penalty is barbaric, that it does not deter crime, that it does not help the victims of crime, and that it transforms murderers into martyrs and judicial errors into irreversible tragedies.
Today, Europe is a death penalty free zone, and it is largely due to the work of the Council of Europe. 46 European countries have ratified Protocol 6 to the European Convention on Human Rights which bans the death penalty in peacetime. Russia is the only exception. There they have a moratorium. They have abolished the death penalty in practice but not in the law so that we are still waiting for them to keep the promise they made at the time of joining the Council of Europe. However the fact remains that no one has been executed in Russia since they joined the Council of Europe 10 years ago. The majority of the rest of the Council of Europe member states have not only banned the death penalty in peacetime, but gone further by having signed and ratified Protocol 13, which prohibits the death penalty in all circumstances, in wartime as well as peace time.
But we all know that there are many people in Europe who continue to support the death penalty. Every time there is a particularly gruesome crime, or in some cases, when an election is coming - there are voices calling for the death penalty to be reinstated.
We cannot afford to ignore these voices or treat this subject as taboo. It would be both short-sighted and undemocratic. We have strong arguments against the death penalty, and we should not be shy about putting them in a public debate. We need to go out and explain to people why the death penalty is wrong, why it has been abolished, and why it should stay abolished.
That is why, in October last year, the Council of Europe established a European Day against the Death Penalty with which the European Union has now associated itself.
Another matter of great concern to me as Secretary General of the Council of Europe is the issue of unjustified restrictions on political rights and freedoms in a number of Council of Europe member states. Such restrictions interfere with rights protected by the European Convention on Human Rights, notably Article 10, which guarantees freedom of expression, Article 11, which guarantees freedom of assembly and association, and Article 14 which prohibits discrimination.
Some governments may believe that they are protecting public interest when they try to silence media which they consider to be irresponsible or keep from power a political force which they consider to be unfit to govern, but such arbitrary actions are undemocratic and contrary to the European Convention on Human Rights.
They often take place in the context of elections, and they have unfortunately led to a tangible drop in public confidence in the ballot box as the legitimate and democratic way to achieve political change. The consequence is that the political argument leaves parliament and goes to the streets, with negative and unpredictable consequences for the country concerned, its neighbours and Europe as a whole.
In the Council of Europe we often get blamed for being too soft or ineffective in the protection of human rights in Europe. I am the first to accept this criticism when it is justified, but I must tell you that much of it is off the target. The fact is that the Council of Europe does excellent and valuable work. We not only produce legally binding standards but also monitor the way our member states comply with them. We never turn a blind eye to problems, and for proof of this claim you only need to look at the reports prepared by our different monitoring bodies from the Committee for the Prevention of Torture to the European Commission against Racism and Intolerance, the Parliamentary Assembly, the Human Rights Commissioner and the Court of Human Rights. The question of course is what is done when serious problems are identified.
The answer is that – in an intergovernmental organisation - much depends on the readiness of Governments to act. The fact is that as far as democracy and human rights in Europe are concerned, we face a paradox. European standards are higher than ever before – largely because of the work of the Council of Europe - but the political commitment to protect them is not always as strong as it should be. This should worry all of us. The level of democracy and human rights in Europe has not yet reached the point at which they would become irreversible, and I doubt they ever will. That is the raison d’être of the Council of Europe.
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