Breaking new ground for human rights

Helen Keller has been appointed as a judge at the European Court of Human Rights zVg

Human rights are not set in stone and may cover many aspects of life from nuclear power to social media, according to international law expert Helen Keller.

This content was published on April 19, 2011 minutes
Etienne Strebel,

The 47-year-old Swiss professor of law at Zurich University was last week appointed as a judge at the European Court of Human Rights in Strasbourg.

The possibility of passing verdicts which break new ground in human rights law is a key fascination in taking up the position, Keller tells on the occasion of her appointment.

Keller, who has also been a member of the United Nations Human Rights Committee since 2008, replaces Giorgio Malinverni as the Swiss representative to the court and will commence her new position in October. What role is there for human rights in our daily lives?

Helen Keller: Human rights come into many spheres of life. Take the disaster at Fukushima in Japan. A nuclear power plant at first sight has nothing to do with human rights. But if the authorities do a lousy job and threaten human lives then it suddenly because a rights issue.

The revolutions in various North African countries are another example. Freedom of expression and press freedom are unthinkable without the new forms of communication such as Facebook and Twitter.

Human rights are not set in stone and this is an advantage. It is crucial that the legal practice can and must be continuously adapted to new threats. You will be one of 47 judges in Strasbourg as of October. Your Swiss predecessor Giorgio Malinverni once said it was a tough task and consisted primarily of reading documents. What’s the attraction for you?

H.K.: It is the chance to try to get to the bottom of a particular aspect of basic rights when considering difficult legal cases. The routine cases of human rights violations, the long procedures do not necessarily make for interesting work.

But there might be one legal gem among the 30 to 40 normal cases. This is where it becomes fascinating to try to introduce new considerations in jurisdiction. Discussions with colleagues are interesting in such trials. I like this very much as many human rights questions cannot be answered easily. Will you be able to continue your present engagements?

H.K.: I have to give up any engagement that might compromise my independence and availability. It will not be possible to work as legal expert and the mandate as a member of the UN Human Rights Committee would take up too much time.

As far a teaching human rights is concerned I’m only allowed a very limited number of lessons and while the court is closed for holidays. The European Court of Human Rights is considered a huge achievement. Paul Widmer, Swiss ambassador to Strasbourg told two years ago that the court risked becoming a victim of its own success. Has anything changed since?

H.K.: Not really. There are currently 140,000 complaints pending despite an enormous effort by the court to increase its efficiency.

The court processes an increasing number of complaints every year, but at the same time a growing quantity of new appeals are filed.

The situation is dramatic and when Switzerland had the rotating presidency of the Council of Europe last year it was working hard towards a reform. That’s where the principle of subsidiarity comes in as mentioned in the Interlaken Declaration. Could you elaborate?

H.K.: The court and the European Convention on Human Rights should only be a last resort for a plaintiff seeking a human rights-based ruling. It should be possible for an individual state to have a national court examine an alleged human rights violation.

This implies of course that human rights are respected at national level. Which is not the case everywhere, notably not in eastern Europe. As a result many people in those countries take their case to Strasbourg as they have no confidence in national courts. With 140,000 complaints pending, quite a few plaintiffs will die before they get a verdict. What can be done?

H.K.: We set higher hurdles during the last reform. It allows the court to throw out a case if no serious violation is found and if a national court has thoroughly examined the case beforehand.

It is a highly delicate matter to tighten the screws even more. The European Court of Human Rights only takes a closer look at about five to ten per cent of all cases. It is up to the chancellery to process the bulk of the other requests. How have people in Europe – individuals and states – benefited from the work of the court?

H.K.: Let’s limit ourselves to Switzerland. The court has repeatedly ruled on human rights issues in Switzerland, for instance on the right of a married woman to keep her own name. And on two occasions it found state legislation was discriminatory because it did not offer men and women equal rights. These are crucial rulings for gender equality.

Another area is equal rights for homosexual couples. The court passed verdicts which are not only groundbreaking for Switzerland but also have eminent importance for the whole of Europe.

A third example which shows the significance of court are decisions on detention rules. Should prisoners have a right to practice their religion? Are they entitled to receive mail? To have access to the media? With its verdicts on such issues the court improved human rights in prisons. A controversial issue for Switzerland with its nationwide ballots is whether people’s will can stand above law. Are the people always right?

H.K.: From the vantage point of human rights and also of Swiss constitutional law there is a clear answer. No, the people are not always right.

All state institutions, including the sovereign electorate and the cantons have to respect basic rights. That’s enshrined in our constitution. A decision even by a majority of voters must not contravene basic human rights.

European Court of Human Rights

The Strasbourg-based court was established in 1959.

It rules on applications by individuals or states alleging violations of the civil or political rights set out in the European Convention on Human Rights.

Since 1998 individuals can apply to the court directly.

The court monitors respect for human rights of about 800 million people in 47 European countries that have ratified the convention.

From 1998 to 2007, the ECHR was chaired by Swiss judge Luzius Wildhaber.

The court operates independently from the European Union Court of Justice.

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Helen Keller

Keller was appointed to the court earlier this month and will take up the post in October.

She follows Giorgio Malinverni who retires after a four-year mandate.

Keller studied at universities in Switzerland, Belgium and Britain.

She teaches international law at Zurich University and is a consultant for a Zurich law firm.

Keller has been a member of UN Human Rights Committee since 2008.

The 47-year-old professor is married and has two sons.

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