European, yet ours
ExpiredThree years ago today the European Convention on Human Rights became part of Serbian internal legal system
European, yet ours
Three years ago today, on 3 January 2004, the European Convetnion on Human Rights and Fundamental Freedoms became effective in our country too. The Parliament of the then state union of Serbia and Montenegro adopted the Ratification Act on 26 December 2003, and on the same day it was published in the Official Journal of Serbia and Montenegro (Sluzbeni list Srbije i Crne Gore). Eight days later, the law became effective. This is why 3 January is the day worth remembering. On that day, the document which has an extremely important role in the field of human rights became an integral part of our legal order. Adoption of the Convention was a declaration of our commitment to strengthen democracy, protection and development of human rights and the rule of law, and readiness to join a great supranational mechanism whose aim is to find the right answers to the challenges that the Member States are facing in all aspects of life, culture, law and economy. Adoption of the Convention also meant declaring that we were willing to accept the fact that defending, promoting and affirming the values listed above are not only an internal affair of individual states, but that they belong in the sphere of shared, collective responsibility of all countries.
Equally important is the fact that by adopting the Convention, we, Serbian citizens have also joined the corpus of as many as one billion people, where everyone is covered by the jurisdiction of the European Court of Human Rights, with all the consequences this may bring. To sum up, the European Convention on Human Rights is a part of Serbian internal legal system and all Serbian courts and other public authorities are obligated to apply its provisions. In legal procedures before public authorities Serbian citizens can directly quote the text of the Convention. Should there be a collision between the Convention and domestic legislation, the Convention prevails and public authorities are obligated to ensure that it does.
Public authorities can and should directly apply provisions of the Convention. This is, of course, possible with those provisions that enable direct application. Naturally, some provisions of the Convention cannot be directly applied and therefore have to be blended into domestic legislation.
This takes time and it is not easy at all, which is why the realization of the Convention must always be monitored and evaluated. And we are not the ones who can provide valid assessments. In this case, valid assessments are given by others. In this context, we cannot avoid the phenomenon of the European Court of Human Rights and its practice. To read and interpret the text of the European Convention out of the context of practice of the European Court in Strasbourg is virtually impossible. Rulings of this Court explain, and in a meritorious, legally binding way interpret the text of the Convention. Unfortunately, we are going to face it soon in what is probably going to be a very dramatic way. Serbian citizens have lodged over 1,500 complaints before the European Court of Human Rights, all of them based on violations of various human rights committed by higher public authorities. As things stand, a sharp increase in the number is very likely to happen.
Particularly interesting to me are the cases based on an aggregate of rights concerning freedom of expression, freedom to receive and distribute information and, of course, freedom to access information. With regard to all of the above, there is also a need to recognize European standards even before they are imposed on us by the court decision. It seems that majority of responsible persons in public authorities do not have the knowledge necessary for public authorities to harmonize their actions with the citizens' need to exercise their freedoms, in accordance with the standards defined by the European Convention and viewpoints expressed through the decisions of the European Court of Human Rights. This fact has (or is going to have) a negative effect on the work of domestic institutions charged with the protection of human rights, such as the Commissioner, Ombudsman, etc.
This indicates at least two very important things concerning the education of responsible persons in the application of the European Convention. First, a well-organised and coordinated education programme for lawyers primarily in the application of the Free Access to Information of Public Importance Act as well as other complementary laws should be implemented on the state level. Second, short-term, some fundamental, indisputable, in European relations totally affirmed viewpoints regarding exercising or restricting freedom of expression, freedom to receive and distribute information and freedom to access information. In simple terms, it means accepting that every restriction of those freedoms is possible and legitimate only if three cumulative conditions have been met. First, that such a restriction is explicitly envisaged by the law. Second, that the objective of the restriction is the protection of a prevailing, also legitimate interest, protected under the Convention or a law. And third, that the restriction is truly necessary in the democratic society. In our practice it is not a problem to recognize the first or the second condition. But there are serious problems when it comes to recognizing the third. To some extent, in a society that is not blessed with a long democratic tradition, this is logical, too. However, restrictions imposed on the aforementioned freedoms are often not a result of traditionalism, conservatism or primitivism but an attempt to hide incompetence, lack of results, misuse, and corruption from the public.
For a smooth democratic transition it is very important that every restriction of the freedom of opinion, expression, receiving and dissemination of information and their accessibility may be, sooner or later, the object of scrutiny of the European Court. However, what is more important is that it is the object of scrutiny of Serbian public. Written by the Information Commissioner
