November 25, 2014
Interview: Argentina is exemplary case, ECHR judge tells Herald
Judge Paul Lemmens talks to the Herald
Paul Lemmens, the Belgian judge at the European Court of Human Rights, is concerned about the possible consequences of UK Prime Minister David Cameron’s vow to decrease the influence of the Court where he sits. “That could be a dramatic development for the whole of Europe,” he told the Herald earlier this week.
Lemmens spoke to the Herald while he was visiting the country — not for the first time as his daughter lives here — to lead a conference alongside former Foreign minister Jorge Taiana on the challenges that human rights systems are currently facing on both sides of the ocean.
Some time ago, UK premier David Cameron said that the European Court of Human Rights was a “small claims court.” Do all political leaders in Europe hold a similar opinion?
Not all — Cameron is one of them. In one month there will be European elections in all of the EU member countries. The question is how strong the voices against human rights and against Europe will become. In the UK, there will be national elections next year. Cameron said: “if we are in the government again, we want to cut down the influence of the European Court.” That could be a dramatic development for the whole of Europe. There are certain trends in other countries that seem to be similar.
The Netherlands. In Belgium, my own country, the position toward human rights is positive but it could change. There are certain countries like Argentina that came out from a recent past with serious violations of human rights and that support European supervision and the European Human Rights Court.
You mean countries from Eastern Europe?
Yes, these countries are very much in favour of the system. Though Cameron wants to cut the wings of the European Court, there are luckily a number of countries that say “we are not following you.”
Why does the UK have such opinion of the European court?
The worst case for the UK was a judgment delivered in 2005 or 2006 by the European Court. It was a complaint brought by a British prisoner who had committed two or three murders but complained that he could no longer vote. The European Court found that there was a blanket ban on everyone who was in prison and the Court said it was disproportionate. The message went completely in the wrong way in the UK and media and political parties said: “These people in Strasbourg order us to give voting rights to the worst criminals.”
What is your opinion of the ongoing human rights policy in Argentina?
Argentina is an example for many countries because it took action. It’s part of a difficult process of what we call dealing with the past. On the one hand, you cannot allow impunity but you cannot punish everyone. You have to find a reasonable compromise. Those who are not punished, they can still function in the society and it integrates them. You did pretty well here and you are an example for many countries.
Here, in Latin America, most countries try to comply with the Inter-American Human Rights Court’s ruling. Does the same happen in Europe?
In general, there is a real compliance. The European convention establishes as well that the committee of ministers of the Council of Europe have a peer-review on each other.
Is there any difference between the two systems of human rights?
For instance, the European Court has limited itself to financial compensation. I should also be realistic. The European Court rulings are usually executed precisely because they are executable. I have the impression that sometimes the Inter-American court goes too far.
There is some concern here regarding crimes committed during Francisco Franco’s dictatorship in Spain, which are unpunished. Has the court examined that issue?
Normally speaking this would fall out of the jurisdiction of the Court.
There is jurisdiction only for facts that were committed after the convention was in force for that country. The only thing that the Court can say something about is investigations. In the last couple of years, the Court has been dealing with old cases. History in Europe is popping up. Recently there was a big case of Polish victims against Russia for a massacre that happened during the World War II . The claim was about the current investigation. Even in that case, the Court said that, for technical reasons, that is outside our jurisdiction. But regarding investigation, the Spanish case could be become an issue for the Court.
But can the offences committed during the Franco era be considered crimes against humanity and thus not subjected to the statute of limitations?
That is a very difficult issue. I can tell you that the question on what is a war crime or genocide is a question pending before the Grand Chamber of the European Court in reference to Lithuania.
What challenges is the European Court facing these days?
I would say there are two types of challenges. On the one hand, you have traditional challenges but they are not the biggest ones. Those are linked to the number of cases. Nowadays there is backlog of about 100,000 cases. This has been a problem for almost ten years.
And what is the second biggest challenge?
That’s more serious. The general atmosphere is not positive any more toward human rights.
The vulnerable who require some protection do not achieve it. Some time ago there was no problem in saying we have to do something for that group. But there are a lot of other people who say why the state should support them. The idea of human rights as everybody’s rights is slowly eroding.
Are states reducing their contributions to the Court?
Fortunately, at this moment, there have been no cuts yet but the Court needs more means.