Author: Antonia Obrvan (Vienna Master of Human Rights)
The European Convention on Human Rights and Fundamental Freedoms (ECHR) is often and by many regarded as the cornerstone of the human rights protection system in Europe, with the European Court of Human Rights (ECtHR) acting as its main protector. Its importance is also shown by the fact that the ratification of the Convention is a prerequisite to the membership of the Council of Europe (CoE) and even the European Union (EU). Signed in 1950 in Rome, this year marked 70 years of its existence, which provides a valuable opportunity to reflect on its impact on the legal systems on the European soil. More interestingly, it is a great chance to look into those countries which have not ratified it even after these 70 years. Can the ECHR be a part of the legal system in non-signatory countries? How? Who are the main actors and what are the main tools?
The relationship between Kosovo and the ECHR
The only countries in Europe which are not ECHR signatories, and hence not CoE member states in 2020 are The Vatican, Belarus and Kosovo, each with their own specific and very different reasons, the depth of which goes beyond the scope of this article. However, summarily it can be understood that Kosovo’s territorial disputes with an already existing member state, Serbia, as well as the controversy surrounding Kosovo’s international recognition as a state, are the main factors that prevent the country from joining the organisation. The CoE has therefore, kept a status ‘quo’, by which it has presence in Kosovo, it conducts activities to support Kosovo institutions in developing to abide by CoE standards of democracy, rule of law and human rights, but it does not officially recognise Kosovo as a state.
On the other hand, the ECHR has been embedded in the Kosovar legal system ever since the 2008 declaration of independence and the adoption of the Constitution. Therefore, the ECHR can be quite important even in the countries which are not official parties to it, if they decide to commit. Remarkably, the Kosovar Constitution in Article 22 lists the ECHR as directly applicable in the legal system and prevailing over the national legislation. It goes a step further in Article 53 by providing that the human rights and freedoms protected by the Constitution need to be interpreted consistently with the jurisprudence of the ECtHR. All of these commitments are made without even being officially bound by the Convention or the ECtHR judgments. On paper this is an excellent way of providing human rights protection even in countries which are not bound by ECHR provisions through ratification. To confirm this, the statistics of the Kosovo Constitutional Court from 2018, as the main authority on the Constitution and the ECHR in Kosovo, show that an astonishing 92% of the cases decided contained a reference to the ECtHR judgments.
Below the tip of the iceberg
The reality is unfortunately much different when one looks beyond the surface. Although the Constitutional Court’s statistics are commendable, it is necessary to consider that Kosovo courts have a massive backlog of cases. The numbers show that at the end of 2019 there were almost 41,000 criminal and civil cases registered in the system as backlogged, with nearly as many cases left to still be put in the system. Additionally, the Constitutional Court’s admissibility criteria correspond to those of the ECtHR, which causes the majority of cases to be declared inadmissible because of their rigour. Combined, these two factors show that Constitutional Court’s statistical success in referring to the ECtHR judgments cannot be considered an overall success of the legal system in applying ECHR standards in Kosovo. This is because the number of cases that reach the Constitutional Court is a very small fraction of the potential cases that would need to be dealt with. Additionally, a human rights course is not a part of the curriculum that the legal professionals are being taught. The result is that very few know how to recognise a human rights violation and how to bring that claim in front of the court from the beginning of the proceedings. Even the exceptions that do so face the obstacle of the judiciary not knowing how to interpret national legislation in accordance with the ECHR standards and ECtHR jurisprudence, until the case reaches the Constitutional Court.
Despite the complicated political reality of Kosovo, it showed how the ECHR can have effect in countries which are not state parties. However, 70 years after the Convention and 12 years after Kosovo’s independence there is still a long way left to achieve what the Constitution envisaged. More focus needs to be put on human rights education of the legal professionals who teach, legislate and work within the legal system to ensure that human rights of citizens are being considered, especially since they do not have access to the ECtHR. This way the citizens could effectively access justice without having to wait for the case to reach the Constitutional Court, which costs time, money and there is a high chance of the case being declared as inadmissible.
My internship location is at the Council of Europe Office in Pristina, Kosovo. Officially my role is that of an administrative assistant for the project called ‘Improving human rights standards by the Constitutional Court in Kosovo’. Most of my work focuses on the organisation of events, contacting experts, dealing with beneficiaries and stakeholders and being the person who makes the ideas of the project become realised in practice. However, the organisation is also enabling me to participate in different skills-development trainings, educational conferences organised by other projects, as well as writing concept notes and doing research for upcoming events whenever possible. One of these was the conference organised by my office jointly with the German Embassy in Pristina celebrating 70 years of the ECHR, a part of which was a segment on how to ‘bring the Convention home’, meaning how to apply its standards through the Kosovo legal system effectively. The volume and the nature of work is not completely as expected because of Covid-19, which made it impossible to hold in-person events therefore significantly limiting the length of the events which managed to be held, thus also impacting the content in terms of the breadth and depth of the topics covered. Nevertheless, despite all of the challenges the team have done their best to provide me as many educational and practical tasks to complement the administrative nature of my post.