Legal expert: Switzerland must follow the rules or quit ECHR

Switzerland is rarely rebuked by the Council of Europe AFP

Either Switzerland adheres to the European Convention on Human Rights (ECHR) and implements the judgments of the Strasbourg Court order or leaves the ECHR and walks away from the Council of Europe – there are no other alternatives, according to a study commissioned by human rights organisations.

How would the Council of Europe in Strasbourg, the guardian of the ECHR, react if Switzerland decided to give national law precedence over a judgement from Strasbourg in a particular case? 

Law professor Walter Kälin anticipates a harsh reaction from the Council of Europe – the Committee of Ministers, the Court and the Parliamentary Assembly.

“Over the past few years the Committee of Ministers has tightened its practice in the sense that it monitors implementation regularly and will intervene in countries. The Parliamentary Assembly of the Council of Europe has also systematically dealt with countries that don’t implement the ECHR not only in individual cases. All these measures ensure political pressure.”

Switzerland wouldn’t face exclusion from the Council of Europe, reckons Kälin. “We show in this study, however, that political pressure works. For example in a country like Britain where the highest government authorities publicly declared at first that they would not accept a judgment of the European Court of Human Rights but ultimately had to give in.”

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Switzerland, too, would have to expect a prolonged real conflict, predicts Kälin. He recommends Switzerland “be honest and either leave the convention – but then you cannot rejoin conditionally as that is legally impossible – or live with the ECHR and forgo such a conflict with the Council of Europe which ultimately you can only lose”. 

Consequences of quitting

Quitting would not only harm the reputation of the Council of Europe and that of Switzerland, but could have serious consequences for human rights protection in Europe as a whole, the report predicts. 

“If a country like Switzerland renounces the ECHR and leaves the Council of Europe, there is a danger that countries with serious human rights problems would follow, i.e. countries not only like Switzerland which are sentenced in individual cases but systematically for human rights violations.”

“That would certainly not be in Europe’s interest, but also not in Switzerland’s because, as experience shows, systematic human rights violations always lead to conflict and are therefore ultimately relevant to security in Europe,” Kälin says. 

(Translated from German by Vincent Landon)