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Introduction In the fresh mountain air of Switzerland1 in February 2010 the Ministers of the Council of Europe issued a joint statement outlining an Action Plan to deal with the serious problems being experienced by the European Court of Human Rights (ECtHR)2. This is the latest proposal for reform of the Court in a long continuous cycle of plans, proposals and reforms. What is notable about these reforms and reviews is that although a court in some form has been in existence for fifty years the scale of the problems facing the Court has increased most rapidly in the last twenty and no sooner have reforms been implemented to deal with urgent problems than there are immediate calls for further urgent reforms3. It is widely recognised that the current crisis is so serious that if action is not taken this “system that has been the pillar of human rights protection in Europe for more than half a century4” is in danger of collapsing.5 The Court is overwhelmed by the sheer volume of applications, a very high percentage of which are deemed inadmissible and a similarly high percentage are repetitive cases which refer to issues that have already been adjudicated on by the Court6. The latest of these reforms, Protocol 147, will come into force in June 2010, it will introduce changes which may alleviate in a small way some of these problems but they will not provide the solution as circumstances have already superseded the problems that the Protocol was intended to address.
This essay will outline the background to the ECtHR, and consider the various reforms that have taken place in its lifetime. It will analyse the problems that lead to the need for the reforms and then consider whether these reforms and operational changes made by the Court were indeed too little or too late. It will argue that, although it has been a difficult and protracted process to reform the Court at any stage, doing so is much easier than bringing about reform where it is really needed,
“Let's hope that this fresh breath of alpine air will indeed save the Court from possible asphyxiation - as president Costa metaphorically labelled the Court's current predicament”. Feb 19 th 2010 A. Buyse http://echrblog.blogspot.com/ (date accessed: 10th March 2010). 2 Action Plan announced at the High Level Conference on the Future of the European Court of Human Rights Interlaken Declaration 19. February 2010. http://www.eda.admin.ch/etc/medialib/downloads/edazen/topics/europa/euroc.Par.0133.File.tmp/final_en.pdf (date accessed: 10th March 2010) (hereinafter Interlaken Declaration). 3 Report of the Group of Wise Persons to the Committee of Ministers, CM(2006)203, November 15, 2006, at para. 26. The Group was established at the Third Summit Meeting of the Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005) (hereinafter Wise Persons). 4 S. Lagoutte, “The Future of the Human Rights Control System: Fighting with Its Back to the Wall” in Stephanie Lagoutte, Hans-Otto Sano and Peter Scharff Smith, (eds.). Human Rights in Turmoil: Facing Threats, Consolidating Achievements. (Leiden: Martinus Nijhoff Publishers, 2007), 25.at p. 47 (hereinafter Lagoutte). 5 Wise Persons supra note 3 at para. 28. 6 See “Annual Report 2009 of the European Court of Human Rights (provisional edition), Council of Europe”, p. at 143 and infra note 20 (hereinafter Annual Report 2009). 7 Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention. CETS No.: 194.
within the contracting states. The ECtHR has a twin role, it deals with individual applications, thereby offering redress for human rights violations, and it creates a human rights standard ... a “European human rights public order.”8 It has “made a major contribution to the shaping of domestic law and practice in almost every area of law9” and this contribution has been brought about by Court judgements which indicate how the states should changes their legal order to comply with the European Convention on Human Rights (ECHR) 10. The problems occur when the states do not make such changes as the Court cannot easily enforce its rulings. Enforcement procedures are essentially political rather than judicial, and require the Council of Ministers to enforce judgements against themselves11. This essay will show that in order to continue to be effective the Council of Europe must enforce the principle of subsidiarity on which the Court is based and that significant moves have been made in this direction, in spite of the fact that Protocol 14 is not yet fully in force. Background to the Court’s problems Established as a direct response to horror of World War 2 and with the desire to prevent such human rights abuses from ever occurring again the Council of Europe adopted the ECHR in 1950 and it came into force in 1953 upon ratification by 10 states. It now “stands as a symbol of everything that is positive about a regenerated post war Europe.12” Since its establishment in 1959 as a tribunal to act as an early warning system to prevent states from lapsing into totalitarianism13 the Court has undergone a series of substantial reforms and transformations, changing from a part time two tier court to its current incarnation as a full time single court14.
The number of State Parties acceding to the Council of Europe and subsequently ratifying the Convention increased dramatically as a result of the political changes in Eastern Europe, there now being 47 State Parties. This in turn led to an increase in the Court‟s work load. In Vienna in 1993 the Heads of State of the State Parties took the decision to reform the Convention control machinery. These reforms were to deal with the problems caused by the increasing workload and concern over the fact that the Commission, a political body, was involved in making judicial
Lagoutte supra note 4 at p. 46. Harris, O‟Boyle and Warbrick Harris, D.J., O‟Boyle, M. Bates and Buckley, C.M., Harris, O’Boyle & Warbrick, Law of the European Convention on Human Rights (2nd ed.) Oxford University Press, 2009, at p. 811 (hereinafter Harris). 10 Convention for the Protection of Human Rights and Fundamental Freedoms. 11 S. Greer, “Protocol 14 and the future of the ECHR”  PL 83 at p. 92 (hereinafter Greer). 12 G. Sadlier “The ECHR – A Victim of its Own Success”  COLR http://www.ucclawsociety.com/colr/editions/2007/COLR%202007%207%20Sadlier.pdf (date accessed: 10 March 2010). 13 Woolf et al., Review of the Working Methods of the European Court of Human Rights (December 2005), p.55. at para.7 (hereinafter Woolf). 14 The current single court structure was established by Protocol 11 in 1998. “Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby”.
decisions. Five years after this decision to implement changes Protocol 11 came into force in 1998 and established the current formation of a single full time court and compulsory jurisdiction of the Court over all individual applications against States Parties15. However in those intervening 5 years alone another 14 countries had acceded to the Convention and it became obvious very quickly that the reforms would be insufficient almost before they had had time to become established.
Efforts began almost immediately to review the system and only two years later the Committee of Ministers was called upon to “identify without delay the most urgent measures to be taken to assist the Court in fulfilling its functions”16. These “urgent measures” eventually lead to the production of a further amending protocol, Protocol 14. This time it took four years for the wording of the Protocol to be agreed upon following a report from the Steering Committee17 in 2003 and Committee of Ministers recommendations in 2004 but it has taken 6 years for the protocol to be ratified by all State Parties18 and the problems which were identified as urgent in 2000 have not abated in the intervening years, quite to the contrary, these problems now threaten the viability of the whole ECHR system19. The Annual Report 2009 shows graphically that in the first 40 years of the Court‟s existence 45,000 applications were allocated to a judicial formation but by 2008 this total was exceeded in one year alone20. This increase in numbers automatically brings an increase in potential applications but the rise in the percentage of applications now deemed inadmissible and the percentage of applications deemed to be as a result of repeat violations cannot be attributed just to the potential number of people now allowed to bring cases to the ECtHR21. These issues cannot be resolved just by rendering the Court capable of physically dealing with the volume. The solutions to the problem will only be found outside the Court structure.
The Subsidiarity Issue One of the critical factors in this success of the ECHR has been the fact that, unlike other international human rights conventions, it is unique in having a control mechanism in the form of the Court. However, the underlying principle of the Convention is one of subsidiarity: it is for the State Parties to ensure that the rights and freedoms guaranteed by the Convention are enforced and,
Protocol 11 “was intended, firstly, to simplify the system so as to reduce the length of proceedings, and, secondly, to reinforce their judicial character”. Protocol 14: Explanatory Report http://conventions.coe.int/Treaty/EN/Reports/Html/194.htm , (date accessed: 10 March 2010), (hereinafter Explanatory Report). 16 European Ministerial Conference on Human Rights (Rome, 3-4 November 2000). 17 Steering Committee for Human Rights (CDDH), CM (2003)55 8 April 2003. 18 As Protocol 14 is an amending protocol it required ratification by all State Parties. It opened for ratification in May 2004 and by the end of 2006 it had been ratified by all but one country. Russia did not ratify it until February 2010. 19 Wise Persons supra note 3 at para. 26. 20 Annual Report 2009 supra note 6 at p.143. 21 The potential applicants to the Court number over 800 million. Ibid at p. 34. 33,065 applications were struck out as inadmissible in 2009. Supra note 6 at p.144.
upon being found in violation of the Convention, it is duty of the State Party to rectify the problem. It is this principle which both creates problems for the court and renders it so difficult to bring about practical solutions which will alleviate these problems. The Court‟s remit to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention22” can only be enforced by the Committee of Ministers and the only ultimate sanctions available to them are to remove voting rights from the offending state or to expel that state from the Council of Europe.23 These measures are recognized as being extreme and potentially counterproductive24 but “[t]he acid test of any judicial system is how promptly and effectively judgments are implemented25” and as Greer says this is the “Achilles heel of the entire Convention system” 26. Because the sanctions available require political will and because that political will is lacking certain states continue to violate human rights with impunity. This in turn leads to their citizens pursuing cases, the substantive issue of which has already been dealt with by the Court.
The fact that decisions of the Court must have a direct influence on laws within the national jurisdiction of the State Parties has been accepted by those states that joined in its early years, and the Convention‟s standards have “permeate[d] the legal order of the contracting parties.27” Many of the current problems can be attributed to the short amount of time within which recently acceded countries have had to adapt their institutions to Convention norms. This problem is compounded by the fact that the earlier contracting states were well established democracies, whereas many of the newer State Parties are democracies emerging from Communist regimes where there was little or no respect for human rights and the rule of law rule28. It must be pointed out however that one of the most persistent offenders is Italy, one of the “established democracies29”.
Protocol 14 Reforms
Article 19 ECHR. Article 8 of the Council of Europe Statute states that [a]ny member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw …”. 24 Explanatory Report supra note 15 at para.100. 25 Comité Directeur pour les Droits de l'Homme/Steering Committee for Human Rights (hereinafter CDDH). 26 Greer believes that “[t]he process of securing effective execution of the Court's judgments is, therefore, essentially political rather than judicial and involves negotiation between the Committee of Ministers and states, which also participate in supervising the enforcement of judgments against themselves.” Greer supra note 11 at 92. 27 Harris supra note 9 at p. 811. 28 For example Lester believes that “[u]nder the present Russian regime, there is no commitment to the European rule of law and no sense of solidarity or collective responsibility with the other states parties. … [Its] systemic and persistent violations place heavy and unacceptable burdens upon the Court and the Convention system.” Lester, A., “The European Court of Human Rights after 50 years”  4 EHRL 461at p. 468 (hereinafter Lester). See also Woolf supra note 13 at p. 9. 29 Helfer observes that “two factors were principally responsible for the rising number of complaints: (1) the accession of former Soviet bloc countries whose transitions to democracy were often slow and fitful; and (2) systemic human rights problems in longstanding Convention member states.” Helfer L. R., “Redesigning the European Court of Human Rights: embeddedness as a deep structural principle of the European human rights regime”  EJIL 125 at 141.
When Protocol 14 becomes fully operational in June 2010 it will introduce changes in three main areas: its ability to filter unmeritorious applications, the addition of new admissibility criteria and measures for dealing with repetitive cases.30 The three main changes are outlined below and will be seen that only one of them has the potential to decrease the workload of the Court.
A single judge court formation will be added to the current court formations of three, seven or seventeen judges. This single judge, assisted by rapporteurs, will have the power to declare individual applications inadmissible or strike them out of the Court‟s list whenever “such a decision can be taken without further examination.”31 This reform is an attempt at a speedier identification of inadmissible cases and has been welcomed by some commentators such as Caflisch who believes that “it should … improve the Court's overall performance32” but the perceived better use of manpower may not in practice free up more judges to deal with substantive issues . Greer, who carried out interviews with judges and officials of the Court states that “[s]ome respondents … cautioned against overestimation on the grounds that most judicial time committed to the current admissibility process involves the activities of Judge Rapporteurs,33” which suggests that judges were not carrying out this work anyway.
The introduction of a new admissibility standard for individual applications that authorises the dismissal of complaints whose authors have not suffered “significant disadvantage34” has proved to be a more controversial reform as it is seen as restricting the right of individual petition, a right that is seen as “a key component of the control mechanism of the Convention,”35 However, regardless of the potential to restrict an individual‟s rights, it will not make the disposal of cases more rapid as three additional criteria will need to be examined before a case can be dismissed under this new article36 and is therefore unlikely to make a significant inroad into the problems of an overloaded court. Neither does it deal with the real problem which is those cases that are currently deemed inadmissible.
30 31 32
Explanatory Report supra note 15 at para. 36. Article 7 of Protocol 14 will become new Article 27 ECHR. L. Caflisch, “The Reform of the European Court of Human Rights: Protocol No. 14 and Beyond” 6 (2006) H.R.L. Rev. 403 at 409 (hereinafter Caflisch). See also Mowbray who believes it will be “a novel method of increasing the efficiency of the Court”. A. Mowbray, „Protocol 14 to the European Convention on Human Rights and Recent Strasbourg Cases‟,  4 HLR Rev. 331 at 332. 33 Greer supra note 11 at p. 88. 34 Article 12 protocol 14 will become new Article 35.3 ECHR. 35 Lester supra note 28 at p. 476. 36 Under the new Article 35.3(b) an application maybe declared inadmissible if “the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”
The problem of repetitive cases is being tackled by extending the powers of the committees of three judges, which currently may adjudicate on admissibility, to make joint decisions on merits too “if the underlying question in the case … is already the subject of well established case-law of the Court”37. The Explanatory Report defines “well established case law as “case-law which has been consistently applied by a Chamber” but a single decision may come within the definition particularly if it is a decision of the Grand Chamber.38 This will mean that in future the seven and seventeen court formations should only be dealing with issues that have not the subject of a previous decision.
Limitations of Protocol 14 Protocol 14 introduces changes to the way the Court will deal with cases that arrive on its desk but it does not deal with the underlying issues which could prevent those cases reaching Strasbourg in the first place. Most of the challenges facing the court such as inadmissible applications and repetitive violations are due to problems at national level, the fact that previous findings have not been implemented, that applicants do not trust their own country‟s legal system or that they have an unrealistic expectation of what the Strasbourg court can deliver39. As the Woolf Review starkly pointed out the current flood of applications is but the tip of the iceberg, “[t]he Russian Federation, for example, is still “discovering the Convention”, and as awareness of the Convention system – and of the right of individual petition – grows, so too will the Court‟s caseload”40 Reports which preceded Protocol 14 and those that were subsequent to its introduction, all stress the need for proper implementation at national level, for example the Woolf Committee held that “[it] is not enough to streamline and speed up the processing of clearly inadmissible cases: instead they must be tackled at their source and, if possible, deflected away from the Court.” 41 Several steps have been taken in this direction.
Pilot Judgment Procedure
Article 8 Protocol 14 will become new Article 28 ECHR Explanatory Report supra note 15 at para. 68. 39 Caflisch identifies 4 principal factors which contributed to these problems. Caflisch supra note 32 at p. 406. 40 Woolf supra note 13 at p. 9. 41 Woolf supra note 13 at p. 16. Similarly the CDDH (supra note 25) states at paragraph 6 that “[n]o matter how unique or how effective the Convention's control system is, it is uncontested that it is at the national level that the rights and freedoms of the Convention are protected most effectively”. It proposes that “the recommendations adopted or to be adopted be followed by a declaration of the Committee of Ministers expressing the firm commitment of member states to implement them and providing for an effective monitoring of progress in that implementation”, at paragraph. 5 [emphasis added]. Similarly the Wise Person‟s Group felt that “the remedies available at national level must be effective and well known to their citizens. Indeed, they constitute the first line of defence of the rule of law and human rights.” Wise Persons supra note 3 at p. 26.
The Court itself has shown that it is prepared “to become more activist, as far as measures to reduce its workload are concerned42”. A recommendation43 to the Court that it use a pilot judgment procedure to deal with repetitive cases has been enthusiastically adopted. Under this procedure the Court identifies in its judgement what it considers to be a systemic problem, particularly where the problem could be a source of a large number of similar applications. This judgment is then notified to the State Party and to significant Council of Europe Institutions. The aim is to assist the state to find a solution, to enable the Court to dispose of many cases by issuing summary judgments patterned on the main case44 and to enable enforcement of the judgment. Within weeks of the Committee of Ministers‟ recommendation being issued the court developed the procedure in the Broniowski45 case which identified “a widespread problem which resulted from a malfunctioning of Polish legislation and administrative practice ... [and is] capable of affecting a large number of persons.46” The Court had found that this “malfunction” had affected nearly 80,000 people and 167 applications were pending before the Court. In its judgment the Court specified general measures which should be taken by the Polish authorities to deal with the whole group, not just the individual applicant‟s case. It then decided that all similar cases would be adjourned until measures had been adopted to deal with the problem at national level. This judgment lead directly to changes within the Polish legal order including declarations of constitutional incompatibility and increased compensation offers for affected applicants. This first pilot judgement was described by Buyse as a “trickle of fresh water” and has resulted in a “small stream “of similar judgments47.
Further reform measures While waiting for the last state to ratify Protocol 14 the Council of Europe institutions have not stood idly by and have continued strenuous efforts to identify ways of improving the Court‟s
P. Lemmens “Single judge formations, Committees, Chambers and Grand Chamber” in Paul Lemmens and Wouter Vandenhole, eds. Protocol No 14 and the Reform of the European Court of Human Rights (Antwerpen: Intersentia, 2005), 31 at p. 43. 43 The Committee of Ministers ... Invites the Court: I. as far as possible, to identify, in its judgments finding a violation of the Convention, what it considers to be an underlying systemic problem and the source of this problem, in particular when it is likely to give rise to numerous applications, so as to assist states in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments; II. to specially notify any judgment containing indications of the existence of a systemic problem and of the source of this problem not only to the state concerned and to the Committee of Ministers, but also to the Parliamentary Assembly, to the Secretary General of the Council of Europe and to the Council of Europe Commissioner for Human Rights, and to highlight such judgments in an appropriate manner in the database of the Court. Res(2004)3(adopted by the Committee of Ministers on 12 May 2004, at its 114th Session) 44 See Caflisch supra note 32 for a more detailed explanation of the procedure. 45 This case concerned the inadequate compensation of people who had been “repatriated” to Poland from their homes near Bug River at the end of the Second World War. Broniowski v Poland 2005-IX; 43EHRR 1 GC, (hereinafter Broniowski). 46 Broniowski ibid at para.189. 47 A. Buyse, “The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges”  Nomiko Vima (The Greek Law Journal). Available at SSRN: http://ssrn.com/abstract=1514441 p. 5.
functioning. Further reports were commissioned,48 that alone can be seen as recognition that the reforms of protocol 14 would not be sufficient, and in May 2009 Protocol 14bis49 was adopted. There is considerable merit in the proposals of the Woolf committee, whose remit was to recommend administrative steps which could be taken without the need to reform the Convention. Its proposals, for local registry offices and the promotion of alternative dispute resolutions inter alia would all improve measures at national level50. It is submitted that these measures together with the recent radical jurisprudence of the Court will do more to address the source of the Courts problems at national level than all of the pending Protocol 14 reforms.
Conclusion This essay has shown that strenuous efforts to reform the ECtHR have been made over the last twenty years and the Council of Europe cannot be faulted in this area. However by the time the actual reforms of the Court have been agreed and then implemented they are most definitely too little and too late to deal with the changed landscape onto which they are belatedly launched. There are very encouraging signs that changes which do not require reforming protocols, such as the pilot judgment procedure, are happening and can go ahead without the need for an energy sapping wait for full ratification. Indeed the Wise Persons have proposed that it be made easier to reform the judicial machinery without the need to reform the Convention51. The recent Action Plan announced in Interlaken shows once more that the Council of Ministers is determined to have a properly functioning control mechanism for the Convention and once again underlines the need for State Parties to play their part in achieving this goal, “call[ing] for a strengthening of the principle of subsidiarity … and [s]tressing that this principle implies a shared responsibility between the States Parties and the Court[.]52” It is easy to forget the origins of the Council of Europe and to lose sight of the enormous advances in the protection of human rights that have been forged in these last sixty years. Achieving a consensus on the way forward with forty seven state parties is extremely difficult but this “beacon of hope for 800 million people of Europe” cannot be allowed to go out and as Lester movingly states “[T]he lamplighters who lit the beacon more than half a century ago are no more, and the light will fail unless our generation rekindles the flame. Let us hope that those
Woolf supra note 13 and Wise Persons supra at note 3. This optional protocol was adopted in May 2009, it only required ratification by three states and it only applies to those states that ratify it. It implements two procedural measures from Protocol 14, the ability of a single judge to declare cases inadmissible and the right of committees of three judges to give judgment in repetitive cases. Protocol No. 14bis to the Convention for the Protection of Human Rights and Fundamental Freedoms CETS No.: 204. available at: http://conventions.coe.int/Treaty/EN/Treaties/html/204.htm (date accessed 10 March 2010). 50 It is surprising to see a proposal that “[t]here should be a formal induction programme for new judges and, where necessary, intensive language training”, (it could have been expected that was already part of standard procedure).Woolf supra note 13 at p.6. 51 Wise Persons supra note 3 at para. 44. 52 Interlaken Declaration supra note 2 at p.2.
who govern us will take heed”53. It appears that those who govern us are indeed taking heed but the wheels of the Convention machinery can only move very slowly with the hopes of 800 million very different people on its shoulders.
Lester supra note 28 at p. 478.
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