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

Seth Johnson seth.p.johnson at gmail.com
Sat Dec 13 17:35:30 EET 2014

On Sat, Dec 13, 2014 at 9:46 AM, Norbert Bollow <nb at bollow.ch> wrote:
> 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.

I'm pretty sure the principle here is more that you can't just "take a
law to court" (or, what people sometimes try, attempt to effectively
amend their constitution by going to court).

> 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.

Surely the European Court of Human Rights has some sort of document
stating what types of cases they can consider.  It might be something
sort of suspended in the international space, with some governments
signing on and saying sure create a court, but not necessarily giving
any strong articulation of how their constitutional orders relate to

A lot of times governments in the international arena are content to
cook up a treaty organization and leave it to posterity to figure out
how it will actually apply.


> Greetings,
> Norbert

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