Shared responsibility –

Effective dialogue

Opening speech by Danish Minister of Justice

Mr. Søren Pape Poulsen

“2019 and Beyond: Taking Stock and
Moving Forward from the Interlaken Process”

High-Level Expert Conference in Kokkedal 22-24 November 2017

Check Against Delivery

Ladies and Gentlemen, Esteemed President of the Court, Distinguished Speakers, Experts and Guests,

Dear Friends,

Thank you for coming. Welcome to Denmark. Welcome to Kokkedal. We know that you have travelled from all across Europe. To be here today. To discuss the future of the European Human Rights system. We are humbled and grateful for that. Because it is an issue of utmost importance. Being in the oldest Kingdom in Europe, the venue is of course a Castle. It might not be the oldest castle. Nor the grandest. Yet we hope it will offer you at taste of royal Danish hospitality.

Reform at the heart of the Danish Chairmanship

Ladies and Gentlemen,

We took over the Chairmanship of the Committee of Ministers last week with equal feelings of excitement and humility. Excitement because of our unique opportunity to contribute to the development of human rights, democracy, and the rule of law in Europe. Humility because we feel a huge responsibility taking up such an important task.

As the title of this Conference reveals, we have placed continued reform of the Convention system at the centre of our Chairmanship. We do so, because Denmark is and has always been a strong supporter of the European Human Rights System. And because the Danish Government is fully committed to ensuring that the Convention system remains relevant and effective in the future.

A changing Europe

More than 20 years have passed since Denmark was last entrusted with chairing the Council of Europe. Much has changed since then. Europe and the Council look different today.

In many ways, we live in a better, more peaceful and prosperous Europe. At the same time, new challenges such as migration, extremism, terrorism and organised crime cause insecurity and well-founded concern. In some parts of Europe, fundamental rights and values are under increasing pressure. And even in countries with a strong tradition and support for human rights, like here in Denmark, the Convention system is being challenged and questioned from different perspectives. Sometimes unfairly. But sometimes also raising valid points. We must address and handle these challenges. We must discuss the difficult questions. Openly and in an honest dialogue with each other. We must together ensure that the Convention system is equipped to meet future challenges.

Subsidiarity and the shared responsibility

Discussing reforms is not new. Reform has been on the agenda of the Council of Europe for a long time. Recently within the framework of the Interlaken Process. Much has been achieved. Perhaps more than we have fully grasped.

Yet, to quote Shakespeare’s famous Danish Prince Hamlet, “all is not well”. The caseload remains a serious issue. The failure to implement judgments, many of which deal with serious systemic and structural problems, is still a real problem. And the authority of the Court is being challenged.

During the Interlaken Process, great emphasis has been placed on the principle of subsidiarity. And for good
reason. Accepting the shared responsibility between Member States and the Court is vital if we are to future-proof the Convention system. And it is key if we are to fulfil our common vision of a more focused, effective and balanced system. A vision to which I fully subscribe.

As often stated, and emphasised by President Macron in his speech to the Court last month: The role of the Court is not to replace our national institutions. Or to act as a ‘court of fourth instance’. Not only is it practically impossible that 47 judges should handle appeals from more than 800 million people. More importantly, this is not the idea of the Convention system. It is the member states who are supposed to be the primary providers and guarantors of the Convention rights. And in doing so they enjoy a margin of appreciation. Subject, of course, to the supervision of the Court.

There are, importantly, two sides of the coin of subsidiarity. Subsidiarity affects not only the way in which the Court should conduct its review, leaving more room to national courts and parliaments. It also affects the way in which states are expected to honour their obligations. Only states who take human rights seriously can expect deference.

The two sides of subsidiarity has been a recurring theme throughout the Interlaken Process. It will be so too here in Kokkedal. We need to discuss both the responsibility of member states and the role of the Court.

A third element – effective dialogue

There is a third element too. One we should not overlook. A system of shared responsibility can only work if there is an ongoing effective dialogue between the court and the member states on their respective roles and on the development of the Convention.

This brings me back to the critical debate we have seen in Denmark on the Convention system. And in other countries, who like us are strong believers in democracy and human rights.

As Minister of Justice, I have to ask myself: What is this really about? Are Danes suddenly hostile towards human rights? I don’t believe so. We have a long and proud history of human rights. We have strong human rights institutions nationally. And we have worked whole-heartedly to promote human rights internationally. I think it is something different.

I believe it often has to do with feelings of detachment from the Convention system: Populations and decision-makers feel that they are not being involved and listened to. National politicians, like myself, sometimes feel like bystanders to a system that – might I add – was created by us, the member states.

I accept that this criticism isn’t always fair. And sometimes it’s exaggerated. But there is a point too.

Through its judgments, the Court today has influence on policy areas of great importance to member states and to our populations. It has impact on our legal systems, on our societies, and on our lives.

The Court does an impressive job. Yet, we cannot ignore the fact that sometimes, just sometimes, when interpreting the Convention, the Court may get it wrong. It may fail to understand the full consequences for member states. It may miss important and valid arguments. This is hardly surprising nor controversial. The court is dealing with hard cases. Difficult dilemmas. And a delicate balancing of rights and interests.

When national courts make judgments that do not resonate with the broad public’s understanding of how the law should be, then national parliaments can in general choose to correct the law. This is how our national systems work. Checks and balances. We do not have the same option with regard to the Strasbourg system. At least not in practice. Changing the Convention is rarely a practical nor feasible option. 

Yet, we have fundamental interest in having an ongoing constructive dialogue between the Court and member states, and with the involvement of civil society. On how the Convention should be developed. Calibrated. No one has an interest in a Convention system that is perceived ‘out of sync’ by member states and the broad public. Least of all the Court itself.

We need to bring Strasbourg closer to home. And home closer to Strasbourg.

And don’t get me wrong. When it comes to dialogue there is only so much the Court can do by itself. ‘It takes two to tango’. We also need to look inwards, as member states. If we expect the Court to listen to us, we must communicate with the Court. Clearly. Respectfully. Through appropriate channels. Not just voice our concerns and complaints in local parliaments and press.

The way forward

So how do we ensure a strong and effective ongoing dialogue? Do we need to change the system entirely?  Absolutely not. The key value of the Strasbourg system lies in having an independent Court, whose authority is uncompromised, and whose decisions we accept as legally binding.  This should not be up for discussion. Indeed, without an independent Court, why bother have a court system at all, one might ask.

Rather we need to find ways to communicate better within the current framework. These are difficult issues. There are no quick fixes. Yet, as Secretary General Jagland said in support of our Chairmanship, when I met him recently, it always begins with an open and honest talk. And this is exactly what we propose to have here in Kokkedal.

So let us take stock and do some serious brainstorming.

We have some ideas we want to bring to the table. Increasing third party interventions is one of them. We see this as a vital important tool for enhancing a constructive dialogue on the interpretation of the convention. There are other tools that could be explored too. We have discussed these matters for some time in Denmark. The Danish Institute for Human Rights and the experts from iCourts of the University of Copenhagen have been active contributors in this debate. They are both here in Kokkedal to share their reflections and facilitate further discussions on these important yet sometimes difficult questions.

Other leading experts, who have done important work on these topics, will also be here. And then we have you! A truly impressive crowd with vast knowledge and experience. I hope you bring along ideas too. And that new ideas will come up during the next few days at the castle.

Conclusion

Ladies and Gentlemen; Experts; Friends,

Denmark is and has always been a strong supporter of the Convention system. We are one of the founding fathers of the Council of Europe. We were one of the first countries to sign the European Convention on Human Rights.For almost 70 years, Denmark has been closely involved in supporting, strengthening and promoting the work of the Council of Europe. We are continuing this legacy with this important event. We sincerely hope that our discussions will be constructive and fruitful.

Later in our Chairmanship, I will invite to a meeting of ministers. This will take place in April 2018 in Copenhagen. Our ambition will be to adopt a political declaration that takes stock of the current reform process, proposes new measures to strengthen the Convention system and provides guidance for further reform work.

The goal is clear. To ensure a strong and effective European human rights system for future generations. With broad support and feelings of ownership. We need it. Europe deserves it. We therefore hope you will support us.

Once again, thank you so much for coming all the way to the cold and dark north. I can promise you, we will do our best to take good care of you and make it “hyggeligt” as we say here in Denmark. It is somewhat difficult to translate. But loosely translated it means being together and having a good time.

Thank you.