[IRPCoalition] [governance] Putting "Human Rights" in Perspective

Norbert Bollow nb at bollow.ch
Sat Dec 13 16:46:13 EET 2014

On Sat, 13 Dec 2014 08:57:24 -0500
Seth Johnson <seth.p.johnson at gmail.com> wrote:

> Hi Norbert -- in your Swiss data retention article, you say
> "Switzerland does not have a constitutional court which would be
> tasked with reviewing a law in regard to whether it appropriately
> respects the constitution and in particular the human rights which are
> declared to be fundamental rights in the constitution."  Surely Swiss
> courts apply fundamental rights.

Yes they do, but they are supposed to assume that the law has already
been thoroughly vetted during the legislative process to ensure that it
does not violate fundamental rights. The job of the courts is only to
interpret the law in accordance to the fundamental rights. That cannot
reasonably be expected to lead to a productive result when the law says
that data retention e.g. of email and phone communications must be done
and we say that that is a human rights violation. Unlike in countries
which have a constitutional court, we're not going to get a judgment
from a Swiss court which says that a certain law of a part of it is in
violation of fundamental rights or otherwise unconstitutional. We can
get that kind of judgment only from the European Court of Human Rights.

>  Is the difference you're referring
> to, that the European Court of Human Rights would handle, the
> opportunity to review a law directly, rather to try than an existing
> controversy?

The European Court of Human Rights also handles only existing
controversies. So we had to create a controversy first, by filing a
petition with Dienst ÜPF (Office of Supervision of Post and
Telecommunication) to please tell our telecommunication providers to
exclude us from data retention because it violates our fundamental
rights. In response, Dienst ÜPF gave us a decision that can be
challenged in court (“beschwerdefähige Verfügung”). The current status
is that the case is pending in the Swiss Federal Court of
Administration. It is only possible to bring a case to the European
Court of Human Rights after having completed the process of going
through the national courts.

> Also, does Europe, or that portion of Europe under the
> jurisdiction of the European Court of Human Rights,

That is BTW essentially all of Europe except Kosovo (it's much broader
than e.g. just the EU, of which Switzerland is not a member.)

However it is not everywhere in Europe that you can expect a judgment
of the European Court of Human Rights to be taken as seriously as it
will be taken e.g. in Switzerland.

> have an appeal
> process under documents that define that jurisdiction, either for
> existing "cases or controversies" or directly for review of laws?

I'm not sure that I understand this question correctly, but if I
understand the question right, the "documents that define that
jurisdiction" are the European Convention on Human Rights and its
Protocols, and the "appeal process" is precisely the possibility of
bringing a case to the European Court of Human Rights after having gone
through the national courts.


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