Diego García-Sayán, Special Rapporteur on the independence of judges and lawyers
Diego García-Sayán who is the United Nation Special Rapporteur on the Independence of Judges and Lawyers penned a column for the El Pais titled ‘Aniversarios: lo bueno, lo malo y lo feo.’ Mr Garcia-Sayan criticized the European Court of Human Rights approach on Turkey’s Inquiry Commission on State of Emergency Measures.
We are sharing its English translation:
Anniversaries: the good, the bad and the ugly
It is ambivalent the balance on the 70th anniversary of the Declarations of Human Rights of 1948, the American, first, and the universal, later. We could have the range of evaluations, perhaps, paraphrasing that emblematic film of the spaghetti western, with Clint Eastwood, 1966, between the good, the bad and the ugly.
In the good, three aspects stand out. First, on balance, today there is not only more democratic rights in the world than in 1948 but, particularly, an increasingly widespread notion of rights among people themselves. In several regions there has been remarkable progress in democratic rights. For example, Latin American democratisation or the end of the Cold War with the effect on Europe of the collapse of the Berlin Wall.
Second, codification and extension of rights in universal or inter-American treaties. Not only do they have the quality of being pieces of obligatory fulfillment, but they have established a wide range of rights that have gone beyond the civil and political rights stipulated in a very broad and general manner in the Declarations of 1948. Issues absent from that year are now at the forefront of democratic agendas: women’s rights, indigenous peoples’ rights or non-discrimination on the basis of sexual orientation, for example.
Third: international justice mechanisms accessible to the people. This goes beyond the mere declarative enumeration of rights to make them internationally justiciable obligations. The various universal international protection bodies and regional courts stand out. That, in Europe and America it is expressed in two vigorous regional courts to which people can turn when justice has been denied them at home. More recently, the African Court on Human and Peoples’ Rights has been added to these courts, with case law still in its infancy.
The bad: old violations persist and others arise. Infinite and implacable dictatorships; in Asia, Africa and, to a lesser extent, Latin America, with their correlation of deprivation of the most elementary democratic rights. But in addition to surviving practice and policies in several countries, new and vigorous authoritarian regressions arise not only in the formerly called third world but in Europe itself. In countries such as Hungary or Poland, judicial independence is under attack, or in the European antechamber (Turkey).
Beyond the attacks of authoritarianism or democratic involutions, other spheres of human life are otherwise threatened with much more vigor and ferocity than in the past. Global warming or the attack on the environment are part of the bad balance; all because of human work. The unstoppable destruction of marine life or deforestation due to the uncontrollable illegal mining of the Amazon in search of gold, for example, are now campy with impunity that can be reinforced by policies such as those announced by Bolsonaro in Brazil.
The ugly: institutional processes that are threatened or disrupted by geopolitical interests. I confess that I am particularly shocked by the visible inaction of the exemplary European Court of Human Rights in the face of serious human rights violations in Turkey. That in the European Court 30,063 claims filed for cases in Turkey have been declared “inadmissible” in 2017 for “exhaustion of domestic remedies” is discouraging.
With hundreds of judges still imprisoned, lawyers’ organizations destroyed and their members also in prison, it is alarming to act as if judicial institutions or legal defense were functioning normally. Abdication of functions for an apparent geopolitical interest not to move the floor from Europe to a country that serves as a stopper in the path of refugees? Ugly subject to follow up.