Introduction to Human Rights Week 8: International mechanisms of implementation – 2nd part V. Monitoring follow-up for the respect of Human Rights Let us now say a few words on the monitoring follow-up for the respect of Human Rights. As we have seen, international control represents an essential aspect of Human Rights implementation. As already mentioned in the historical part of the course, this control takes its place in a concomitant perspective in the recognition of these rights by international instruments that are Human Rights treaties of guarantee. However, everyone is aware that in order to be necessary to its protection, international control for the respect of Human Rights is often not enough alone. International control often - and I was about to say "inevitably" - calls the adoption of national measures in order to implement the measures resulting from the right to control exercised by international bodies. For example, When a State submits a report before a UN Committee which has to make sure that an international Convention of Human Rights is implemented correctly, if a breach is opposed to national practices which show major deficiencies, this review is not enough to re-establish a situation in accordance with international obligations to which the State has subscribed. International bodies' reviews, reports and recommendations imply that national authorities adopt all the needed and useful measures to ensure an effective respect of the engagements to which thy have subscribed. For example, it is not necessarily enough for the European Court of Human Rights to observe, thanks to an individual application, that a State has not respected the European Convention on Human Rights to agree that the applicant is right. This type of judicial control imposes on the State Parties to exercise a follow-up at their national level. As the Strasbourg Court states, the aim is to make sure that the exercise of the right is not only theoretical or illusory but concrete and effective. In addition to the control made on the international stage, the national follow-up for the respect of Human Rights is today one of the most complex but also flourishing aspects of Human Rights evolution. We must however recognize that much progress remains to be made in this field. As we have seen, among the various types of mechanisms, Human Rights judicial control gives the best example of the conceivable solutions regarding the follow-up monitoring of the respect of these rights. At the European level, for example, Article 46 of the Convention of 1950 states that States are bound by the judgements delivered by the European Court of Human Rights. Like we saw last week, these court rulings are final and interpretable. Therefore, their binding nature imposes on States Parties to adopt all the necessary measures to restore the situation in accordance with the right. According to the case law of the Court, States assume an obligation to respect Human Rights. Means to implement them is an evidence of their sovereignty. That is what we call the statu quo ante re-establishment: The re-establishment of the situation before Human Rights violation. This re-establishment can be achieved by the adoption of various measures - general or individual - in the image of legislative, administrative or judicial measures to avoid violations of the European Convention on Human Rights to repeat. In this context, a procedure is particularly interesting: the reopening, at the national level, of the procedure which led to the referral to the European Court of Human Rights. The just satisfaction that the Court can grant to the applicant - according to Article 41 of the European Convention on Human Rights - is not always enough to compensate the damage suffered by the applicant. Example: if the Strasbourg Court notes a violation of the right to respect for private and family life - within the meaning of Article 8 of the European Convention on Human Rights - because of, for example, the unjustified expulsion of a person, we easily understand that the allocation of a symbolic amount is not enough to remove the vice of which the expulsion measure is marred. Such a measure can be no more than a way to make up for a possible material damage or a moral good. In such a case, the author of the application is interested in obtaining the right to stay in the country, that is to say to obtain the removal of the measure aiming at expulsing him/her. Yet, the European Court of Human Rights does not have the power to cancel an administrative or penal measure such as the expulsion of a foreigner. The deposit of an individual complaint before the Strasbourg Court is indeed only the exercise of an action for a right that has no nullifying effect on a case such as the one of an unjustified expulsion of a foreigner. In such a case, the operative part of a judgment of the European Court of Human Rights needs to be completed with another national purview. In this respect, Switzerland is an interesting example. Indeed, Switzerland acquired a rather complete legislative arsenal. Hypothetically, when Switzerland endures a sentence from the European Court of Human Rights, the national legislation allows - under certain conditions - to reopen the file at the level of the last national body in order to revise, that is to say to retake the case that was found to violate the European Convention of Human Rights and judge it again. The revision procedure was introduced in Swiss law at the end of the twentieth century - more than 20 years ago - following a number of sentences pronounced by the European Court of Human Rights. The question was to know how the sentences could be followed-up at the national level. Nowadays, when the European Court comes to the conclusion that the Convention has not been respected by the Swiss authorities, it is not uncommon for the applicant to ask for the procedure to be reopened before the Federal Supreme Court, which is, in principle, the last competent national body where a file can be re-examined. Let me give you a particularly interesting and illustrative example of that: it is a judgment ruled by the European Court of Human Rights on 13 December 2007. This case concerned the right to respect for family life, within the meaning of Article 8 of the European Convention on Human Rights. In accordance with the Swiss Civil Code, the adoption by a cohabitee of the adult daughter of his partner dissolved the filiation ties between the mother and her child. This strange situation applied because the two partners were living together without being married. The provisions of the Swiss Civil Code regarding filiation provide that, in case of adoption, the previous filiation ties are broken except for the spouse of the adopter. Yet, the traditional interpretation of the word "spouse" - like it is understood in the Swiss law - only refers to married people. It does therefore not include people who live in cohabitation. In this particular case, the young girl had won a paternal filiation tie with her mother's partner but she had lost the filiation tie that brought her together with her mother. After noticing that a cohabitation relation is part of the notion of family life which is protected by Article 8 of the European Convention on Human Rights, the Court observed a violation of this guarantee. In the unanimous opinion of the Court judges, the respect for family life required to take the biological and social realities into account in order to avoid, I quote, "the blind, mechanical application of the provisions of the law to this very particular situation for which they were clearly not intended." Consequently, the Court concluded that the lack of this consideration hurt the wishes of the concerned people and did not benefit to anyone. Obviously, such a verdict does not restore the situation in accordance with the respect for Human Rights. Indeed, what is important in such a case is to restore the filiation ties between the mother and her daughter. Yet, an International Court of Justice, such as the Strasbourg European Court of Human Rights, does not have the necessary competence to institute such a measure on its own authority. That is why, following this judgment of principle of the European Court of Human Rights, applicants - who were agreed to be in the right by the Strasbourg Court - solicited the Federal Supreme Court to revise the judgment. The Supreme Court had at first noticed that the loss of a filiation tie because of an hypothetical out of wedlock adoption did not contravene neither with the Swiss civil law nor with the European Court of Human Rights. Logical consequence: a new judgment was ruled on 18 July 2008. It happened quickly after the judgment of the Court which dated back to the previous December. The Federal Supreme Court accepted the revision request. It cancelled its previous judgment - the one that led to the referral to the European Court of Human Rights - and it agreed that the concerned people were right after noticing that the re-establishment of the filiation tie between the mother and her daughter after the adoption was the only way to ensure the concrete and effective respect for family life provided by Article 8 of the Convention.
