Swiss judges human rights in European context

Malinverni has devoted his life to human rights issues swissinfo.ch

Giorgio Malinverni of Switzerland says judgements at the European Court of Human Rights (ECHR) help harmonise legislation on human rights around Europe.

A law professor, Malinverni tells swissinfo about the importance of the Strasbourg court, which monitors compliance of the European Court of Human Rights Convention in the 46 member states of the Council of Europe.

Malinverni has been the Swiss representative at the court since the beginning of the year.

In 2006 there were nine judgements involving Switzerland, ranging from family issues to tax law.

swissinfo: What impact do the ECHR’s judgements have on the states involved?

Giorgio Malinverni: There are essentially two types: there’s the direct impact which obliges a state to change its legislation. In Switzerland, a court judgement pushed the country into unifying its criminal procedure and another helped change the civil code on the names of spouses.

There are also indirect effects, in that a judgement concerning a particular state can cause other states to voluntarily change their own legislation to be in line with the court’s judgement.

The processes of change and the change to legislation as a result of court judgements contribute to the creation of a “jus communae europeaum”, a kind of legal heritage which conforms to the European Convention on Human Rights and to which member states can refer.

swissinfo: How has the defence of human rights changed in democratic countries?

G.M.: You have to note that offences dealt with when the court started its work were not very serious and there were not – or only very rarely – violations of the right to life. Often the court had to rule on the fairness of a court case. Now that eastern European countries and Turkey have entered the Council of Europe there have been guilty verdicts for torture and serious violations to the right to life.

swissinfo: Swiss Justice Minister Christoph Blocher has said that it is national law and sovereignty of the people that count more than international law. What is your view on this?

G.M.: This is a point for debate – which is more important: direct democracy or the protection of freedom? Experience shows that the population can take decisions that go against fundamental rights. So who should have the final word? Who should make the ultimate decision? The people? Parliament? Judges?

swissinfo: Who would you say should have the final word?

G.M.: For a long time it was thought that parliament should represent the people. This opinion was valid for all the 19th and the beginning of the 20th century. The setting up of constitutional courts allowed judges to check parliamentary decisions for conformity to the Swiss constitution.

Blocher is referring mostly to the question of who should have the last word. The people or the judges? The Federal Court’s judgements on the Emmen citizenship cases [overturning a decision not to grant citizenship to people of Balkan origin] show that the people can also get it wrong.

swissinfo: European law is becoming more important and often the conformity of Swiss law to it is referred to, especially on asylum and foreigners issues.

G.M.: There are three decisive elements in the constitutional history of the end of the last century and the beginning of this.

Before the Second World War human rights were rarely talked about. Only after the Universal Declaration on Human Rights of 1948 did they gain heightened importance and nowadays everything is evaluated in relation to human rights.

The spread of and the weight given to constitutional courts – which should guarantee the respect of these rights – and the appearance of international control bodies have contributed to reinforcing the central role of human rights and fundamental freedoms. And this is a good thing.

swissinfo: In Switzerland some people want to prohibit the building of minarets. How does this tally with freedom of religion?

G.M.: Freedom of religion belongs to everyone. In Switzerland Islam is the second religion after Christianity and therefore Muslims also have the right to places of worship. There are no reasons why one should discriminate against Muslims by not allowing minarets. We have our churches.

swissinfo: Some people see minarets as a threat to Swiss identity.

Whether people like it or not, more and more people will keep knocking on our doors. Switzerland, which has a natural ability for and history of cohabitation, must accept this process. Things change and these changes are irreversible.

swisisnfo-interview: Françoise Gehring in Ascona

Giorgio Malinverni

The Swiss was born in Domodossola (Italy) in 1941. He is married with three children.

He studied law at Fribourg and Geneva and became professor of constitutional law, international law and international human rights at Geneva University in 1980.

He has worked as a lawyer for the International Committee of the Red Cross and is also a member of the European Commission for Democracy through Law (Venice Commission).

Malinverni replaced Luzius Wildhaber as the Swiss judge at the ECHR on January 19 this year

European Court of Human Rights

The court, which was set up in 1959, applies the European Human Rights Convention. It has 46 member states. Every member state provides a judge.

Switzerland ratified the European Human Rights Convention in 1974.

All domestic legal means have to be exhausted before a case reaches the court. The Federal Court in Lausanne is Switzerland’s highest instance.

English and French are the court’s official languages but complaints can be filed in 41 languages.