Report | Doc. 12221 | 27 April 2010
Effective implementation of the European Convention on Human Rights: the Interlaken process
Committee on Legal Affairs and Human Rights
Summary
The Committee on Legal Affairs and Human Rights welcomes the declaration and action plan which emerged from February’s high-level conference on the future of the European Court of Human Rights in Interlaken, especially its recognition of the basic principle that human rights must be guaranteed first and foremost at national level. Convention rights need to be better implemented nationally, states with major structural problems which give rise to repeated breaches of the Convention must deal with these more effectively, and Court judgments should be swiftly and fully executed.
For their part, parliaments can play a key role in stemming the flood of applications by, for example, scrutinising draft laws to make sure they are compatible with Convention standards and keeping up the pressure on governments to execute Court judgments.
Lastly, the committee welcomes the changes introduced by the entry into force in June 2010 of Protocol No. 14 to the Convention, and spells out when the new nine-year term of office for judges will begin.
A. Draft resolution
(open)B. Explanatory memorandum by Mrs Bemelmans-Videc, rapporteur
(open)1. Introduction
2. The Interlaken Conference
I
ask myself this question in the light of our own work. Although
Mrs Däubler-Gmelin’s “Reflections on the Interlaken process” were
made available to conference participants, I cannot recall any discussion
concerning a number of issues raised in her paper (see, in particular,
paragraphs 4 and 8; an extract of her text can be found in Appendix
II to this report). These
observations may be worth bearing in mind, in particular by the
forthcoming Turkish Chairmanship of the Committee of Ministers,
which is to organise a follow-up conference on this subject in April
2011.the Secretary General’s Interlaken
contribution pinpointing (potential) difficulties in this respect, as
well as Mrs Däubler-Gmelin’s observation: “considering that the
Court is financed through the Council of Europe’s budget, state
contributions are totally inadequate, not to say pathetic (several
states’ contributions to the Council of Europe’s budget do not even
cover – or only barely – the salary of a single judge on the Court!)”.
Between 2003 and 2009 the Court’s budget grew from 35.4 million
to 57 million euros. In 2003 the Court accounted for 19% of the Organisation’s
ordinary budget, compared with 26.3% in 2009. If, as the Secretary
General has indicated, money continues to be transferred from the
Council of Europe’s Programmes of Activity budget to the Court, there
will soon be no money left for programmes of activity. We must find
other solutions. And yet, despite the urgency and imperative necessity
for member states to deal with this matter, this subject is not
even mentioned in the Interlaken Declaration. There was a phrase
in a draft version of the Interlaken text, dated 12 February 2010,
under the rubric “Implementation”, which merely proposed inviting
the Committee of Ministers to “determine whether additional budgetary
means need to be provided to the Court and to the Committee of Ministers
in order to ensure that the [case-law] backlog can be reduced and
that new cases can be decided within a reasonable time”. This text,
instead of being strengthened, did not find its way into the final
version of the Interlaken Declaration.
- I find it inappropriate for the Action Plan to refer, in its paragraph 9.b, to the Court’s role as being subsidiary in the “interpretation” of the ECHR. This is simply legally wrong: see Article 19 of the Convention, which states that the Court was established to “ensure” the observance of the engagements undertaken by the High Contracting Parties. I do not find satisfactory the (purported) justification to have kept this word in the text by assuming that it refers only to issues of admissibility. Indeed, I consider the tenor of paragraph 9 somewhat dirigiste with respect to an independent judicial body, even though the veiled criticism directed at the Court is somewhat camouflaged by reference to shared responsibility “between the States Parties and the Court”.
- The reference, in paragraph 8.a, of the Action Plan specifying the need for all candidates put forward for election by the Assembly to be proficient “in at least one official language” does not reflect the position of the Assembly which, in Resolution 1646 (2009), paragraph 4.4, clearly stipulates “candidates should possess an active knowledge of one and a passive knowledge of the other official language of the Council of Europe”. This text also makes reference to the model curriculum vitae which is appended to the Resolution and in which this requirement is clearly stipulated.
We too, in the Assembly, may need to seriously re-assess the manner in which we deal with such problems, especially with respect to non- or late implementation of Court judgments by a growing number of States Parties to the Convention, which puts the viability of the whole mechanism into jeopardy.
- the Court is not equipped to deal with large scale abuses of human rights (why has the Committee of Ministers not made vigorous use of its 1994 Declaration on Compliance with Commitments?; ditto the Assembly, in refocusing its monitoring priorities?) [and that]
- a number of the Court’s main “clients” have made no serious effort to put into effect the 2000–2004 reform package (will ministers take upon themselves the responsibility to ‘name and shame’ states that have put into jeopardy the existence of the ECHR system?)” (paragraph 4; text in Appendix II).
If indeed
the Court is in a desperate situation, as the Secretary General
and others have indicated, robust and effective use of the Organisation’s
monitoring instruments must be resorted to. This was proposed by
Mrs Däubler-Gmelin, a solicitation that was clearly reiterated by
the Assembly’s President, Mr Çavuşoğlu, in his keynote speech in
Interlaken. 3. Implementation of the Interlaken Declaration and Action Plan
It is this
working party, which had its first meeting on 13 April, that is
expected to propose an initial series of draft decisions for adoption
at the ministerial session on 11 May.
- the Committee of Ministers provided ad hoc terms of reference to the Steering Committee for Human Rights (CDDH) on 10 March 2010, with respect to measures not requiring amendment of the Convention, implementation of which began at the meetings of the CDDH Bureau on 23 March and the Committee of experts on the reform of the Court (DH-GDR) on 24-26 March, with a second meeting of the latter scheduled on 5-7 May 2010; the CDDH is to make a first report to the Committee of Ministers by the end of June 2010;
- The Committee of Ministers is to examine at its DH (Human Rights) meetings the implications of the Interlaken Action Plan for its supervision of the execution of the Court’s judgments; its next DH meeting is scheduled for 1-3 June 2010;
- Immediate measures have already been taken by the Court, as announced by President Costa in March: as of 1 June 2010, date of entry into force of Protocol No. 14, ECHR, single judges will start operating for all States Parties, acting as a filtering mechanism; the Court will consider introducing rules on the pilot judgment procedure into its Rules of Court; a letter will be sent, in April 2010, to States Parties to the Convention asking those states that have not already seconded national judges or other high-level independent lawyers to the registry whether they would be willing to do so; the Court is also examining the experience of its new prioritisation policy;
- And last but not least, during the April 2010 part-session, the Assembly will hold a debate, with the participation of Mrs Eveline Widmer-Schlumpf, Head of the Federal Department of Justice and Police of Switzerland, on the subject of “Effective implementation of the European Convention on Human Rights: the Interlaken process”, based upon this report, as adopted by the Legal Affairs Committee.
4. The Parliamentary dimension
and it is the Assembly which provides
‘democratic legitimacy’ to the judges on the Court whom it elects (Article
22, ECHR). Hence, the somewhat puzzling feature of the documents
adopted in Interlaken which make no mention of the Assembly and
contain scarcely a word on the role of national parliaments. The
Assembly must therefore reflect upon how best the ‘parliamentary
dimension’ should be fed into the Interlaken process. It is therefore
somewhat surprising that paragraph 4.a of the Action Plan does not
refer to the (potentially) key role played by parliaments. Indeed,
it is the responsibility of all the state organs – the executive,
the courts and the legislature – to prevent or remedy human rights
violations at the national level. Governments and parliaments are
principally responsible for prevention, whereas remedying violations
is mainly, but not exclusively, the responsibility of the judiciary.
In so far as the legislature is concerned, its role is to carefully
examine whether draft legislation is compatible with the Convention
and its protocols, as interpreted by the Court. Only when the domestic
system fails should the Court step in. Subsequently, if and when
there is an adverse finding by the Court, the emphasis shifts back
to the domestic arena and the state is required to execute the judgment
under the supervision of the Committee of Ministers. At this stage
too, parliamentary involvement may be necessary, not only as the
(rapid) adoption of legislative measures can be required to ensure
full compliance with Court judgments, but also parliaments exercise
oversight functions in relation to the actions or lack thereof of
the executive. That
said, the manner in which many national legislative bodies function
in this respect is still not satisfactory, in spite of the efforts
of the Assembly. He
has even gone so far as to suggest that “the Assembly may – in the
future – seriously need to consider suspending the voting rights
of a national delegation where its national parliament does not
seriously exercise parliamentary control over the executive in cases
of non-implementation of Strasbourg Court judgments”. This thinking is in line with
the strong position our Committee appears to be taking on this subject , as I had the opportunity to explain
at a colloquy organised in Stockholm, in June 2008, entitled “Towards
stronger implementation of the ECHR at national level”. But in order to do
so, the Assembly will need to give this work priority, which in
turn implies adequate logistical backup. This view is reinforced
by the findings of a survey conducted back in 2008, which indicates
that relatively few parliaments have instituted such overview mechanisms. This work, both here in Strasbourg
and in our national parliaments, should be integrated into the “Interlaken
process”. Hence
the importance, in this connection, of Committee of Ministers’ Recommendation
(2008)2 to member states on efficient domestic capacity for rapid execution
of judgments of the European Court of Human Rights. Persistent
long delays and/or failure fully to execute the Court’s judgments
by member states are not acceptable.5. Need to maintain the authority and effectiveness of the Strasbourg Court
“Subsidiarity” requires
that the authority of the Court’s case-law be reinforced in national
law, as was also highlighted by experts in the hearing our Committee
had on the “Interlaken process” in December 2009 (see Mrs Däubler-Gmelin’s
“Reflections” in Appendix II, paragraph 15), as well as by the Secretary
General in his Interlaken contribution. This
merits perhaps being one of the key subjects of discussion at a
conference “the former Yugoslav Republic of Macedonia” (the in-coming
Chairmanship of the Committee of Ministers) is to organise on 4-5
November 2010, entitled “Strengthening subsidiarity – integrating
the Strasbourg Court’s case-law in national law and practice”. as well as
paragraph 5 of Mrs Däubler-Gmelin’s “Reflections on the Interlaken
process” (in Appendix II to this report). When national selection
procedures are inadequate, the Assembly’s hands are tied; the quality
of candidates may be good, but it is not always outstanding. If
the highest judicial authorities in States Parties are to recognise
the Court’s findings as authoritative, the Assembly must be in a
position to elect judges of the highest possible calibre. I have
therefore noticed with interest, in this connection, that the Committee
of experts on the reform of the Court (see paragraph 16 above) has
rightly placed emphasis on the need to improve national selection
procedures. With this in mind, Rule 2 of the revised
Rules of Court – which are also to enter into force on the same
day – will specify that when a seat on the Court is vacant, the
term of office of a judge, elected by the Assembly, is to begin
as from the date of taking up office (swearing-in), but not later than
three months after the date of his or her election; similar provisions
are envisaged for a judge when he or she needs to be replaced. This is a sensible tidying-up of
a provision that needed amendment, in that it is not always possible
for a newly elected judge to take office from the date of election,
as is stipulated in the unrevised (old) version of the Rules of
Court. Likewise, when the term of office of a judge expires or the
judge declares the intention to resign, the successor cannot always
take up office on the day of his or her election. And, as it is
the Assembly which elects judges (Article 22 of the ECHR), I propose
that the Assembly likewise specifies, in a formally adopted text,
that the nine-year term of office of a judge elected by the Assembly
to the Court shall commence from the date of taking up of his/her
duties, and in any event no later than three months after his/her
election. However, if the election takes place more than three months
before the seat of the outgoing judge becomes vacant, the term of
office shall commence the day the seat becomes vacant. If the election
takes place less than three months before the seat of the outgoing
judge becomes vacant, the elected judge shall take up his/her duties
as soon as possible after the seat becomes vacant and the term of
office shall commence as from then and in any event no later than
three months after his/her election.Appendix 1 – Conference on the Future of the European Court of Human Rights. Interlaken Declaration and Action Plan: 18–19 February 2010
(open)Interlaken Declaration
The High Level Conference meeting at Interlaken on 18 and 19 February 2010 at the initiative of the Swiss Chairmanship of the Committee of Ministers of the Council of Europe (“the Conference”):
1. Expressing the strong commitment of the States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the European Court of Human Rights (“the Court”);
2. Recognising the extraordinary contribution of the Court to the protection of human rights in Europe;
3. Recalling the interdependence between the supervisory mechanism of the Convention and the other activities of the Council of Europe in the field of human rights, the rule of law and democracy;
4. Welcoming the entry into force of Protocol No. 14 to the Convention on 1 June 2010;
5. Noting with satisfaction the entry into force of the Treaty of Lisbon, which provides for the accession of the European Union to the Convention;
6. Stressing the subsidiary nature of the supervisory mechanism established by the Convention and notably the fundamental role which national authorities, i.e. governments, courts and parliaments, must play in guaranteeing and protecting human rights at the national level;
7. Noting with deep concern that the number of applications brought before the Court and the deficit between applications introduced and applications disposed of continues to grow;
8. Considering that this situation causes damage to the effectiveness and credibility of the Convention and its supervisory mechanism and represents a threat to the quality and the consistency of the case-law and the authority of the Court;
9. Convinced that over and above the improvements already carried out or envisaged additional measures are indispensable and urgently required in order to:
i. achieve a balance between the number of judgments and decisions delivered by the Court and the number of incoming applications;
ii. enable the Court to reduce the backlog of cases and to adjudicate new cases within a reasonable time, particularly those concerning serious violations of human rights;
iii. ensure the full and rapid execution of judgments of the Court and the effectiveness of its supervision by the Committee of Ministers;
10. Considering that the present Declaration seeks to establish a roadmap for the reform process towards long-term effectiveness of the Convention system;
The Conference
(1) Reaffirms the commitment of the States Parties to the Convention to the right of individual petition;
(2) Reiterates the obligation of the States Parties to ensure that the rights and freedoms set forth in the Convention are fully secured at the national level and calls for a strengthening of the principle of subsidiarity;
(3) Stresses that this principle implies a shared responsibility between the States Parties and the Court;
(4) Stresses the importance of ensuring the clarity and consistency of the Court’s case-law and calls, in particular, for a uniform and rigorous application of the criteria concerning admissibility and the Court's jurisdiction;
(5) Invites the Court to make maximum use of the procedural tools and the resources at its disposal;
(6) Stresses the need for effective measures to reduce the number of clearly inadmissible applications, the need for effective filtering of these applications and the need to find solutions for dealing with repetitive applications;
(7) Stresses that full, effective and rapid execution of the final judgments of the Court is indispensable;
(8) Reaffirms the need for maintaining the independence of the judges and preserving the impartiality and quality of the Court;
(9) Calls for enhancing the efficiency of the system to supervise the execution of the Court’s judgments;
(10) Stresses the need to simplify the procedure for amending Convention provisions of an organisational nature;
(11) Adopts the following Action Plan as an instrument to provide political guidance for the process towards long-term effectiveness of the Convention system.
Action Plan
A. Right of individual petition
1. The Conference reaffirms the fundamental importance of the right of individual petition as a cornerstone of the Convention system which guarantees that alleged violations that have not been effectively dealt with by national authorities can be brought before the Court.
2. With regard to the high number of inadmissible applications, the Conference invites the Committee of Ministers to consider measures that would enable the Court to concentrate on its essential role of guarantor of human rights and to adjudicate well-founded cases with the necessary speed, in particular those alleging serious violations of human rights.
3. With regard to access to the Court, the Conference calls upon the Committee of Ministers to consider any additional measure which might contribute to a sound administration of justice and to examine in particular under what conditions new procedural rules or practices could be envisaged, without deterring well-founded applications.
B. Implementation of the Convention at the national level
4. The Conference recalls that it is first and foremost the responsibility of the States Parties to guarantee the application and implementation of the Convention and consequently calls upon the States Parties to commit themselves to:
a) continuing to increase, where appropriate in co-operation with national human rights institutions or other relevant bodies, the awareness of national authorities of the Convention standards and to ensure their application;
b) fully executing the Court’s judgments, ensuring that the necessary measures are taken to prevent further similar violations;
c) taking into account the Court's developing case-law, also with a view to considering the conclusions to be drawn from a judgment finding a violation of the Convention by another State, where the same problem of principle exists within their own legal system;
d) ensuring, if necessary by introducing new legal remedies, whether they be of a specific nature or a general domestic remedy, that any person with an arguable claim that their rights and freedoms as set forth in the Convention have been violated has available to them an effective remedy before a national authority providing adequate redress where appropriate;
e) considering the possibility of seconding national judges and, where appropriate, other high-level independent lawyers, to the Registry of the Court;
f) ensuring review of the implementation of the recommendations adopted by the Committee of Ministers to help States Parties to fulfill their obligations.
5. The Conference stresses the need to enhance and improve the targeting and coordination of other existing mechanisms, activities and programmes of the Council of Europe, including recourse by the Secretary General to Article 52 of the Convention.
C. Filtering
6. The Conference:
a) calls upon States Parties and the Court to ensure that comprehensive and objective information is provided to potential applicants on the Convention and the Court’s case-law, in particular on the application procedures and admissibility criteria. To this end, the role of the Council of Europe information offices could be examined by the Committee of Ministers;
b) stresses the interest for a thorough analysis of the Court’s practice relating to applications declared inadmissible;
c) recommends, with regard to filtering mechanisms,
i. to the Court to put in place, in the short term, a mechanism within the existing bench likely to ensure effective filtering;
ii. to the Committee of Ministers to examine the setting up of a filtering mechanism within the Court going beyond the single judge procedure and the procedure provided for in i).
D. Repetitive applications
7. The Conference:
a) calls upon States Parties to:
i. facilitate, where appropriate, within the guarantees provided for by the Court and, as necessary, with the support of the Court, the adoption of friendly settlements and unilateral declarations;
ii. cooperate with the Committee of Ministers, after a final pilot judgment, in order to adopt and implement general measures capable of remedying effectively the structural problems at the origin of repetitive cases.
b) stresses the need for the Court to develop clear and predictable standards for the “pilot judgment” procedure as regards selection of applications, the procedure to be followed and the treatment of adjourned cases, and to evaluate the effects of applying such and similar procedures;
c) calls upon the Committee of Ministers to:
i. consider whether repetitive cases could be handled by judges responsible for filtering (see above Section C);
ii. bring about a cooperative approach including all relevant parts of the Council of Europe in order to present possible options to a State Party required to remedy a structural problem revealed by a judgment.
E. The Court
8. Stressing the importance of maintaining the independence of the judges and of preserving the impartiality and quality of the Court, the Conference calls upon States Parties and the Council of Europe to:
a) ensure, if necessary by improving the transparency and quality of the selection procedure at both national and European levels, full satisfaction of the Convention’s criteria for office as a judge of the Court, including knowledge of public international law and of the national legal systems as well as proficiency in at least one official language. In addition, the Court's composition should comprise the necessary practical legal experience;
b) grant to the Court, in the interest of its efficient functioning, the necessary level of administrative autonomy within the Council of Europe.
9. The Conference, acknowledging the responsibility shared between the States Parties and the Court, invites the Court to:
a) avoid reconsidering questions of fact or national law that have been considered and decided by national authorities, in line with its case-law according to which it is not a fourth instance court;
b) apply uniformly and rigorously the criteria concerning admissibility and jurisdiction and take fully into account its subsidiary role in the interpretation and application of the Convention;
c) give full effect to the new admissibility criterion provided for in Protocol No. 14 and to consider other possibilities of applying the principle de minimis non curat praetor.
10. With a view to increasing its efficiency, the Conference invites the Court to continue improving its internal structure and working methods and making maximum use of the procedural tools and the resources at its disposal. In this context, it encourages the Court in particular to:
a) make use of the possibility to request the Committee of Ministers to reduce to five members the number of judges of the Chambers, as provided by Protocol No. 14;
b) pursue its policy of identifying priorities for dealing with cases and continue to identify in its judgments any structural problem capable of generating a significant number of repetitive applications.
F. Supervision of execution of judgments
11. The Conference stresses the urgent need for the Committee of Ministers to:
a) develop the means which will render its supervision of the execution of the Court’s judgments more effective and transparent. In this regard, it invites the Committee of Ministers to strengthen this supervision by giving increased priority and visibility not only to cases requiring urgent individual measures, but also to cases disclosing major structural problems, attaching particular importance to the need to establish effective domestic remedies;
b) review its working methods and its rules to ensure that they are better adapted to present-day realities and more effective for dealing with the variety of questions that arise.
G. Simplified Procedure for Amending the Convention
12. The Conference calls upon the Committee of Ministers to examine the possibility of introducing by means of an amending Protocol a simplified procedure for any future amendment of certain provisions of the Convention relating to organisational issues. This simplified procedure may be introduced through, for example:
a) a Statute for the Court;
b) a new provision in the Convention similar to that found in Article 41(d) of the Statute of the Council of Europe.
Implementation
In order to implement the Action Plan, the Conference:
(1) calls upon the States Parties, the Committee of Ministers, the Court and the Secretary General to give full effect to the Action Plan;
(2) calls in particular upon the Committee of Ministers and the States Parties to consult with civil society on effective means to implement the Action Plan;
(3) calls upon the States Parties to inform the Committee of Ministers, before the end of 2011, of the measures taken to implement the relevant parts of this Declaration;
(4) invites the Committee of Ministers to follow-up and implement by June 2011, where appropriate in co-operation with the Court and giving the necessary terms of reference to the competent bodies, the measures set out in this Declaration that do not require amendment of the Convention;
(5) invites the Committee of Ministers to issue terms of reference to the competent bodies with a view to preparing, by June 2012, specific proposals for measures requiring amendment of the Convention; these terms of reference should include proposals for a filtering mechanism within the Court and the study of measures making it possible to simplify the amendment of the Convention;
(6) invites the Committee of Ministers to evaluate, during the years 2012 to 2015, to what extent the implementation of Protocol No. 14 and of the Interlaken Action Plan has improved the situation of the Court. On the basis of this evaluation, the Committee of Ministers should decide, before the end of 2015, on whether there is a need for further action. Before the end of 2019, the Committee of Ministers should decide on whether the measures adopted have proven to be sufficient to assure sustainable functioning of the control mechanism of the Convention or whether more profound changes are necessary;
(7) asks the Swiss Chairmanship to transmit the present Declaration and the Proceedings of the Interlaken Conference to the Committee of Ministers;
(8) invites the future Chairmanships of the Committee of Ministers to follow-up on the implementation of the present Declaration.
Appendix 2 – Reflections on the Interlaken process
(open)(Extract from the conclusions of the Chairperson
of the Assembly’s Committee on Legal Affairs and Human Rights of
a hearing held in Paris on 16 December 2009 )
(...)
I. The context: Interlaken Conference to be held on 18-19 February 2010
2. Why did I propose to the Committee a hearing on this subject? There were two reasons for this. It struck me as rather odd that the Assembly had not been involved in any of the substantive discussions or in meetings leading up to the conference. Also, it appeared to me that the title of the conference – “The Future of the European Court of Human Rights” – was too narrowly circumscribed, suggesting that problems facing the Court should be our primary concern. Our hearing dispelled this misunderstanding: the conference must also urgently address domestic (non-)implementation of Convention standards and determine how best to ensure prompt and full compliance with Strasbourg Court judgments – as our best hope to help stem the flood of applications submerging the Court.
3. When circulating the draft Interlaken Declaration, the Swiss authorities specified that the declaration should pursue three objectives: (i) reaffirm a commitment to the ECHR system (including the right of individual application), (ii) express support for the Strasbourg Court to act autonomously in its initiatives to increase its own efficiency, and (iii) put on track in-depth reform to guarantee the long-term efficiency of the system of individual complaint. This Declaration, together with an eight-point Action Plan, is presently the object of consultations with member states (draft text available on the Committee of Ministers’ Chairmanship website www.interlakenconf.admin.ch). But how, and exactly upon whose authority, and in whose name, have these priorities been established and would they be implemented? I note, in this connection that – as yet – the potentially key role of national legislative organs and of the Assembly is not alluded to.
4. The Swiss authorities must be commended for their initiative. But do member states, at ministerial level, have the courage to “bite the bullet” to confront the real human rights issues and problems facing member states and the Council of Europe? We are all fully aware that:
- the Strasbourg Court is not equipped to deal with large scale abuses of human rights (why has the Committee of Ministers not made vigorous use of its 1994 Declaration on Compliance with Commitments?; ditto the Assembly, in refocusing its monitoring priorities?);
- a number of the Court’s main “clients” have made no serious effort to put into effect the 2000-2004 reform package (will ministers take upon themselves the responsibility to ‘name and shame’ states that have put into jeopardy the existence of the ECHR system?), and
- considering that the Court is financed through the Council of Europe’s budget, state contributions are totally inadequate, not to say pathetic (several states’ contributions to the Council of Europe’s budget do not even cover – or only barely – the salary of a single judge on the Court!).
II. The authority and effectiveness of the ECHR: need for a renewed impetus
5. The authority of the Strasbourg Court is contingent on the stature of judges and the quality and coherence of the Court’s case-law, which certain states have put into question. The most eminent jurists in member states with relevant experience should be encouraged to leave flourishing national careers, preferably in their late 40s, 50s and early 60s, to serve in Strasbourg. When national selection procedures are inadequate, the Assembly’s hands are tied; often candidates are good, but not outstanding. If the findings of the Strasbourg Court are to be recognised as authoritative by their peers at the domestic level, the Assembly must be in a position to elect top quality judges.
6. The sheer volume of applications needing attention in Strasbourg has led to unacceptable delays which prevent judges from concentrating on their principal judicial task in dealing with cases that merit priority consideration. In this sense, quality and effectiveness are jeopardised by workload. The Strasbourg Court’s Registrar provided us with alarming statistics. By the end of 2009, the Court will have received almost 57,000 new applications, an increase of 14%. On the side of output, the Court will have rendered judgment in more than 2,000 cases, an increase of more than 20% compared to 2008. But the backlog has reached almost 120,000, with a deficit of 1,800 applications every month. When analysing the Court’s problems, we were informed that a small number of states dominate the Strasbourg Court’s backlog: Russia represents nearly 28%, Turkey 11%, Ukraine 8.6% and Romania 8.3%. These four states together represent roughly 57% of the backlog. If one takes the ten high case-count states, the backlog comes to 77% (adding Italy, Poland, Georgia, Moldova, Slovenia and Serbia). Indeed, in 2008, 86% of the Court’s judgments (1,543 in total) concerned just 12 states.
7. Another factor to be taken into account is the very high number of repetitive applications before the Court, deriving from the same structural problems at the domestic level, some of which have remained unresolved for many years. Over half of the judgments concern repetitive applications. The registrar estimated that there are probably about 20,000 such cases in the Court’s backlog. In 2008 70% of the Court’s judgments concerned breaches of the Convention in repetitive or clone cases.
8. To these statistics can be added information about late (and non-)execution of Strasbourg Court judgments. The number of cases pending before the Committee of Ministers at the end of 2000 was 2,298, while the equivalent figure for 2009 was 8,614, of which 80% concern repetitive cases. This too, is unacceptable.
9. Simply put, the Convention system in Strasbourg is in danger of asphyxiation:
- it is impossible for the Court to render justice to all individuals (as recognised by the existence of committee and single-judge procedures, a ‘fig-leaf’ that maintains the legal fiction of a judicial determination of all applications);
- it is totally absurd for the Court and its staff to waste time and effort in dealing with repetitive applications (surely old democracies, like Italy, not to mention more recent ‘persistent defaulters’ such as Moldova, Poland, Romania, Russia and Ukraine, ought to be subjected to “aggravated”, if not “punitive” or “exemplary”, damages)
- failure of many states to provide appropriate effect to their Convention obligations, haphazard implementation of the 2000-2004 reform package and unacceptable delays in full execution of Strasbourg Court judgments (what prevents national parliaments and the Assembly from summoning ministers to account for this at “hearings” in full view of the media, and for the Committee of Ministers to bring “infringement proceedings” against recalcitrant states with respect to non-execution?)
10. The root causes of the Court’s workload and increasing backlog have to be eliminated. All meritorious cases, even if mostly repetitive, must be dealt with by the Strasbourg Court. There are no easy solutions, and in this respect reference can be made to ideas mooted, in particular, in the CDDH Opinion and by the Secretary General in their contributions to the Interlaken Conference. But should we embark, already now, on yet another major (internal) reform of the Strasbourg Court? Is there an imperative necessity to create within the Court an additional judicial filtering body, as advocated by the German authorities and others? Why cannot this be done by a “chambre des requêtes” composed of (a rotating pool of) existing judges? Could not such work be undertaken by ad litem judges taken from within the Court’s registry and/or states’ judicial corps? Should we not wait to see how the “pilot judgment” procedure develops? And what about the introduction of the system of “astreintes” (a fine for delay in performance of a legal obligation) to be imposed on states that persistently fail to comply with Court judgments (see Assembly Opinion No.251 (2004), paragraph 5)? Could one not consider, for example, the utility of imposing a small court fee to discourage potentially hopeless applications being addressed to Strasbourg?
11. There exist no miracle solutions to the difficulties confronting the Strasbourg Court if we are to maintain its dual role of ensuring common European human rights standards and individual supervision and adjudication. Tinkering with such controversial issues as the compulsory use of the Court’s official languages or compulsory representation by a lawyer might simply divert precious time and energy from other essential work.
III. The authority and effectiveness of the ECHR: need for prompt and full implementation of the Court’s judgments
IV. The authority and effectiveness of the ECHR at the national level: stemming the flood of applications
12. These two subjects were dealt together at the hearing; both touch upon issues in relation to which we parliamentarians – in our dual capacity as national legislators and members of the Assembly – have a crucial role to play. They also concern the “principle of subsidiarity”, in that states have primary responsibility to prevent human rights violations and to remedy them when they occur.
13. National parliaments can and should ensure the compatibility of draft laws, existing legislation and administrative practice with Convention standards, and in particular possess “specific mechanisms and procedures for effective parliamentary oversight of the implementation of the Court’s judgments on the basis of regular reports by the responsible ministries” (Assembly Resolution 1516 (2006), paragraph 22.1). For present purposes suffice to recall work we have been undertaking on this subject since 2000, the hearing we had in November 2009 on “parliamentary scrutiny of ECHR standards” (highlighting the effectiveness of parliamentary procedures in the United Kingdom and in the Netherlands), and the fact that too few parliaments have, to date, set up appropriate oversight mechanisms to ensure the rapid and effective implementation of Strasbourg Court judgments.
14. The Strasbourg supervisory mechanism is “subsidiary” in nature. States are responsible for the effective implementation of the Convention and it is the shared duty of all state organs (the executive, the courts and the legislature) to prevent or remedy human rights violations at the national level. This is principally, but not exclusively, the responsibility of the judiciary. Hence the logic of putting into place an effective human rights complaints mechanism at the national level, which would diminish the risk of the Strasbourg Court acting as a fourth instance appellate jurisdiction. Witness the small amount of complaints, comparatively speaking, that reach the Strasbourg Court from Spain and Germany. Appropriate domestic remedies, intensive training of lawyers, prosecutors and judges, the creation of a human rights culture and the impregnation of the Strasbourg acquis within national state structures – especially with respect to the “big sinners” (see paragraphs 6 to 8 above) – would help stem the flood of applications to the Court. Thus, well-functioning national human rights protection mechanisms might make superfluous the idea of creating a separate filtering body within the Strasbourg Court and shift back primary responsibility to national legal systems, where it belongs.
15. One subject of particular significance, discussed at the hearing, was the need to enhance the authority and direct application of the Strasbourg Court’s findings in domestic law. Rather than refer to the erga omnes effect of Grand Chamber judgments of principle, it is probably more accurate to refer to its interpretative authority (res interpretata) within the legal orders of states other than the respondent state in a given case. Here, I have in mind the United Kingdom’s 1998 Human Rights Act, Section 2 § 1 of which specifies that national courts “must take into account” Strasbourg Court judgments, and Article 17 of Ukrainian Law No.3477–IV of 2006, which reads: “Courts shall apply the Convention [ECHR] and the case-law of the [Strasbourg] Court as a source of law”. This subject merits special attention in Interlaken.
16. The Council of Europe and its member states must do their utmost to solve a number of – often very serious – human rights problems in a handful of recalcitrant states. Rather than concentrate time, energy and money on reform (primarily) within the Court, is it not better to await, as proposed by the Group of Wise Persons in 2006, the effects of Protocol No.14 (which is to improve the Court’s efficiency by 25%), and place greater emphasis on the implementation of the 2000-2004 reform package? I believe that I reflect the majority view of the Committee when citing the CDDH position on this subject:
“In order to ensure the long-term effectiveness of the Convention system, the principle of subsidiarity must be fully operational. This should be the central aim of the Interlaken Conference” (CDDH Opinion, § 9, my underlining).
(...)
Reporting committee: Committee on Legal Affairs and Human Rights
Reference to committee: Decision of the Bureau, Reference No. 3657 of 12 March 2010
Draft resolution adopted unanimously by the Committee on 26 April 2010
Members of the Committee: Mr Christos Pourgourides (Chairperson), Mr Christopher Chope, Mr Christoph Strässer, Mr Serhiy Holovaty (Vice-Chairpersons), Mr Florin Serghei Anghel, Ms Marieluise Beck, Ms Marie-Louise Bemelmans-Videc, Ms Ingrida Circene, Ms Ann Clwyd, Mr Agustín Conde Bajén, Mr Telmo Correia, Mr Joe Costello (alternate: Mr Terry Leyden), Mr Arcadio Díaz Tejera, Ms Lydie Err, Mr Renato Farina, Mr Valeriy Fedorov, Mr Joseph Fenech Adami, Ms Mirjana Ferić-Vac (alternate: Mr Milijenko Dorić), Mr György Frunda, Mr Jean-Charles Gardetto, Mr József Gedei, Ms Svetlana Goryacheva, Mr Neven Gosović, Ms Carina Hägg, Mr Holger Haibach, Ms Gultakin Hajibayli, Mr Johannes Hübner, Mr Michel Hunault, Mr Rafael Huseynov, Mr Shpetim Idrizi, Mr Želiko Ivanji, Ms Kateřina Jacques, Mr Mogens Jensen (alternate: Mr Per Dalgaard), Mr András Kelemen, Ms Kateřina Konečná, Mr Franz Eduard Kühnel, Ms Darja Lavtižar-Bebler, Mr Younal Loutfi, Mr Pietro Marcenaro, Ms Milica Marković, Mr Dick Marty (alternate: Mr Andreas Gross), Ms Ermira Mehmeti Devaja, Mr Akaki Minashvili, Mr Philippe Monfils, Mr Felix Müri (alternate: Ms Liliane Maury Pasquier), Mr Philippe Nachbar, Mr Vitalie Nagacevschi, Mr Adrian Năstase, Ms Anna Ntalara (alternate: Ms Elsa Papadimitriou), Ms Steinunn Valdís Óskarsdóttir, Mr Yüksel Özden, Mr Valery Parfenov, Mr Peter Pelegrini (alternate: Mr József Berényi), Ms Marietta de Pourbaix-Lundin, Mr Valeriy Pysarenko, Mr Janusz Rachoń, Ms Mailis Reps (alternate: Mr Aleksei Lotman), Ms Marie-Line Reynaud (alternate: Mr René Rouquet), Mr François Rochebloine, Mr Paul Rowen, Mr Armen Rustamyan, Mr Volodymyr Rybak (alternate: Mr Ivan Popescu), Mr Kimmo Sasi, Ms Marina Schuster, Mr Yanaki Stoilov, Mr Fiorenzo Stolfi, Lord John Tomlinson, Mr Tuğrul Türkeş, Ms Özlem Türköne, Mr Øyvind Vaksdal, Mr Giuseppe Valentino (alternate: Mr Giacomo Santini), Mr Hugo Vandenberghe, Mr Egidijus Vareikis, Mr Miltiadis Varvitsiotis, Mr Luigi Vitali, Mr Klaas De Vries, Ms Nataša Vučković, Mr Dimitry Vyatkin, Mr Marek Wikiński, Ms Renate Wohlwend, Mr Jordi Xuclà i Costa
N.B.: The names of the members who took part in the meeting are printed in bold
Secretariat of the committee: Mr Drzemczewski, Mr Schirmer, Ms Szklanna, Ms Heurtin