HADJIRA HUSSAIN KHAN
Paul Lemmens (°1954) took up office in 2012 as the Belgian judge at the European Court of Human Rights in Strasbourg, France. In September 2021, his nine-year term ended. In this interview, he talks about his work at the Court.
Was there any noticeable evolution in the nine years you were judge at the European Court of Human Rights?
“The Court has become more cautious, there is more emphasis on subsidiarity. That means that the Court interferes less and less in matters that are better left to the states. That process was already underway before I started as a judge; the Brighton Declaration of 2012 was an important push in that direction.”
“This increased focus on subsidiarity has been accompanied by the responsibilisation of national judges. I like to speak of teamwork between the European Court and the national judges. It is important that the national judges fulfill their role, and many do so very adequately. If the national judge has looked at the case correctly, it is in principle no longer up to the Court to question his or her ruling. The Court can take some distance. In separate opinions I indicated a few times during my term that I might have handled the case differently had I been a national judge. But it is not always necessary for the Court to take the national judge to task. That’s something the Court did perhaps more easily in the past.”
Are there any political upheavals that caused this evolution at the Court?
“The 1990s were the heyday for human rights. The Berlin Wall had fallen, the struggle between the West and communism was over. Suddenly many things became possible in Europe and also elsewhere. At that time, the Court went quite far in some of its rulings. While some of those rulings were criticized by national governments, states generally remained faithful to the ECHR. It’s not that governments had a populist agenda. But they sometimes asked themselves why Strasbourg was interfering with matters of national sovereignty or with matters which could be better resolved by the national courts.”
“An important case was about crucifixes in Italian schools (Lautsi v. Italy). A chamber of the European Court had said in 2009 that crucifixes did not belong in public schools, and that their presence violated religious freedom. This judgment was followed by a massive reaction from numerous governments. In 2011, the Grand Chamber came to a different conclusion, namely, that crucifixes are part of the Italian traditions and that their presence did not violate the fundamental rights of non-Catholics. That ruling made many people think about how far the European Court may go.”
“There have also been sharp reactions against certain judgments related to migration. That is a sensitive issue for a number of states. Governments do not like their policy freedom to be limited in that matter.”
“Furthermore, a broader populist movement developed, which questions the relevance of human rights. There is resistance among certain groups to the power of institutions like the European Court to tell national legislators how they should act.”
”Compared to the 1990s, the context is different, and the Court has to adapt itself to it. The Court is somewhat of a tightrope walker. On the one hand, it has to apply the law correctly, but on the other hand, it also has to be careful not to saw off the branch on which it sits. In a way, the Court depends on the 46 member states of the Council of Europe. To begin with, those states make the resources available to the Court. But their cooperation is indispensable in many more areas. If the states no longer accept the human rights protection system, then the system is worth nothing, and the ECHR is just a piece of paper. The process of subsidiarity responds to social and political evolutions that take place outside the Court.”
“But I think it is important to emphasize that the Court should only step aside as long as the national courts correctly fulfill their role. When that is not the case, the Court will continue to intervene and provide the protection that follows from the ECHR. That is why the Court in recent years reminded some governments of the importance of the rule of law and the independence of the judiciary.”
One of your parents was of Polish-American descent. Did those foreign roots spark your interest in human rights and foreign policy?
“No doubt. My mother was born in Poland of a Polish father and a mother of Polish-American descent. The latter had grown up in the United States, but moved to Poland with her parents and met her Polish husband there.”
“That family background has certainly influenced me. When I moved to Strasbourg, I was looking forward to getting more in touch with Eastern Europe. I even started learning Polish at the time, but I eventually had to drop out because the language was too difficult for me and I didn’t have enough time to do my homework.”
In the case of Vavřička and others v. Czech Republic, the Court held that a legal obligation to be vaccinated is not necessarily against human rights. The case had nothing to do with the covid pandemic, but the logic followed in the case can also be said to apply to that pandemic, and to a general vaccination obligation in that situation. The judgment refers to ‘social solidarity’ that can give rise to an obligation to vaccinate, even if there is a -limited- risk to the vaccinated. In your separate opinion you emphasize that in addition to fundamental rights, there is also such a thing as fundamental duties and responsibilities.
“You’re asking me now if I want to make a comparison between the Vavřička case and COVID-19. I prefer to leave that to others. The judgment clearly states in one of the first paragraphs that it is about known diseases like measles and polio where there is a tradition of vaccination in small children and babies. So it is not about COVID-19.”
“In my ‘separate opinion’,I thought it important to highlight social solidarity. Because the concept of ‘social solidarity’ is mentioned a few times in the judgment. There was such a solidarity involved in that case because herd immunity was being pursued, through which the whole society would be protected.”
“The government was faced with parents who refused to have their children vaccinated. One of the elements that came into play for the Court at that time, not the only one, was that of social solidarity. In my view, this social solidarity is essential for a society. There must always be a balance between fundamental rights and fundamental duties. I would not exclude that the Court further elaborates the concept of social solidarity and its relevance in other social contexts. I am thinking, for example, of climate change: perhaps each individual human being also has certain fundamental duties that are akin to social solidarity?”
“The fact that you are a member of a given society implies that you cannot do without the other members. But the other can’t do without you either. It’s a constant interplay.”
Has there been a strong individualization around human rights thinking? If you look at the COVID pandemic, people mainly invoke their individual rights.
“It are mainly the opponents of the COVID measures who heavily relied on their individual rights. The governments continued to take into account both individual duties and individual freedoms. In the context of the Vavřička case, there were sufficient elements for the Court to decide that mandatory vaccination against known diseases was acceptable. Was the same true with COVID-19? Much depends on the data that were available at the relevant moments. Does this mean that the government can just impose any obligation in the name of public health? Of course not, individual rights are to be respected. There always has to be a balance between individual rights and the general interest.”
“Those who complain that human rights carry too much weight often say that it are ‘the others’ who wrongly invoke all kinds of individual rights. In their eyes, ‘the others’ block what they themselves would like to do. But human rights are important for everyone. History has made that very clear.“
“In political discussions, human rights are usually not the starting point. They often only come up when there is loud clamor from a certain group in society that considers that its rights and freedoms are being restricted. My personal opinion is that NGOs have a huge role to play in emphasizing the relevance of human rights for each of us. But also: in explaining what their limits are, for the sake of other members of society.”
“Also, the media could give more context to certain incidents so that people can better understand the relevance of human rights. There is a lot of critical talk about human rights but sometimes I ask myself whether those who talk know what human rights are really about. It would be useful, for instance, to stress the link between human rights and human dignity.”
During the pandemic, residential care centers were particularly hard hit. Some NGOs and human rights institutions were very critical of the human rights situation during the pandemic in those centers. Do you think there is a lack of legal standards and structures to protect the elderly?
“Older people have few mouthpieces. It’s easy to push them into the corner and treat them paternalistically. I think older people must have a say in how they want to be treated. It must be frustrating when your wishes are not, or not sufficiently, taken into account. From a human rights standpoint, it is imperative that the voice of older people be heard. How should that voice be allowed to express itself? It’s up to policymakers to determine that. An ‘elderly rights commissioner’ might be an idea.”
“In some other countries in Europe, older people are more respected than in Belgium. It is something that is culturally determined. Therefore, I think that in some European countries the problems surrounding the treatment of the elderly are different. In those countries, then, you may have another problem: that older people have too much of a say, and that they continue to have too much of a hold on society.”
When it comes to human rights, things in countries like Poland and Hungary seem to be heading completely in the wrong direction. In your opinion, are we seeing a temporary problem there in an evolution still leading from dictatorship to democracy, or is there a serious and potentially fatal threat to democracy in Central and Eastern Europe?
“I don’t know if I’m the right person to answer this question. It seems more something for political scientists. But I am an optimist. I see that in those two particular countries, Poland and Hungary, but also in other countries, society is not as homogeneous as we think. Poland and Hungary are both fairly divided societies. There are also forces there that are moving in a different direction than the current majorities. So why should the damage to the rule of law and democracy not be a temporary phenomenon? The current rulers may lose their majority, for many reasons by the way.”
“In the meantime, the problem is a real one. There is a certain tendency, unfortunately not only in Poland and Hungary, to move in an ‘illiberal’ direction, where the majorities do not allow minorities to enjoy the same rights as they do, and where it is made difficult for the political opposition to do what is its role, namely to oppose the government and to advocate different views on how to organize society and how to share the joys and burdens. I come back to the importance of the rule of law: each society can develop its own political system, and each population elects its own representatives, but there are limits to what majorities can do with their powers. Respect for the rule of law is an essential part of the ‘social contract’ in a democratic society. This has also been underlined by the Court of Justice of the European Union in its judgments on the ‘conditionality’ mechanism’ with respect to financing of EU member states from the EU budget (judgments of 16 February 2022 in cases C-156/21 and C-157/21). And respect for the rule of law implies respect for human rights, together with the fulfilment of fundamental duties.”
Following its expulsion from the Council of Europe in March, Russia will cease to be a party to the European Convention on Human Rights on 16 September 2022. Was the post-Cold War attempt to include Russia in the Council of Europe a failure? Do you expect Russia to some day join again?
“As I already explained, there was a genuine belief in the 90s that Europe and the world were heading to a community of states that shared the same values of human rights and democracy. In retrospect, it is fair to say that the expectations were too high. In Europe in particular, the West took it for granted that these values would permeate all societies, even those that had a long totalitarian past. In Eastern Europe, and in Russia in particular, the sobering up came after some years. Human rights and democracy did not guarantee better living conditions for all. The ideals of human rights and democracy became associated with an elite that had lost touch with the reality on the ground.”
“It is in this context that the ‘fundamental values’ of the Russian society resurfaced, values that are sometimes not conciliable with the ‘European public order’ that is constituted by the ECHR. There are some questionable traditions that are more firmly grounded in Russian roots than many in the Council of Europe thought. And it does not help when the regime exploits these traditions to push the population away from Western ideals and to get them behind a certain geo-political line.”
“Was it a mistake to allow Russia to join the Council of Europe, back in 1996? It was a political decision, and it should be assessed in the light of the conditions prevailing at that time. What is clear, is that Russia found it increasingly difficult to keep to the rules of the game, and that it increasingly went its own way. Nevertheless, to many in Russia the Court gave hope, and sometimes tangible protection. It will not be able to fulfil this role after 16 September; in fact, it has hardly been able to do so since 16 March.”
“Will Russia ever return to the Council of Europe? Why not? But after the war which was started by Russia, and after the past experiences with Russia when it was a member state of the Council of Europe, I doubt that Russia will soon be allowed to return. And it may take a long time before Russia itself becomes interested in rejoining the Council of Europe and resubjecting itself to the ECHR. It looks like the world is dividing itself in two blocks again: a block around the United States and Europe, and a block around China and Russia. It does not take much imagination to see the consequences of this division for human rights…”
Was it always a dream of yours to become a judge in Strasbourg?
“Yes, but it was ‘only’ a dream. It wasn’t something I felt I had to work towards. Because in that case there would have been too big a chance that such a goal would not be achieved, and then the disappointment would have been very great.”
“Rather, I consider my mandate as a judge in Strasbourg a gift from heaven, something for which I am grateful that it has happened to me. My professional career has always circled around the Court. First as a lawyer, then also as a national judge. And during my whole professional life through my work at the university. In that sense, my election as a judge in Strasbourg was a dream come true.”
** Parts of this interview first appeared in the Flemish Journal of Human Rights (Tijdschrift voor Mensenrechten)