Doc. 9200

17 September 2001

Structures, procedures and means of the European Court of Human Rights

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mrs Lili Nabholz-Haidegger, Switzerland, Liberal, Democratic and Reformers' Group

Summary

A permanent Court of Human Rights was set up in 1998 principally to deal with the ever-increasing number of individual applications. The right to individual petition must be considered as the cornerstone of the Convention. However, since 1998 the number of applications has continued to rise sharply and the "backlog" of cases pending before the Court, instead of diminishing, has continued to increase considerably. Member states should in no way impair the effective exercise of the right to individual application which is unique in the world. It is therefore urgent and essential that adequate measures are taken to improve the situation and to give the Court the necessary staff and financial means to be as effective as possible and to cope with its ever-increasing workload.

I. Draft recommendation

1.        Once again the Assembly wishes to stress the tremendous importance of the European Convention on Human Rights which set up a unique system for the protection of individual rights and freedoms currently applicable to nearly the whole of Europe.

2.        In accordance with Article 34 of the Convention, the European Court of Human Rights "may receive applications from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation … of the rights set forth in the Convention or the protocols thereto".

3.        This right of individual application is the cornerstone of the Convention and it is essential that the exercise and the implementation of this right be facilitated in every way.

4.        The main reason why a permanent Court was established in 1998 was the ever-increasing number of individual applications which the part-time system, in existence until then, had not been able to cope with.

5.        However, the number of individual applications continued to rise sharply and, as a consequence, the backlog of cases, instead of diminishing, continued to increase considerably.

6.        Thus the number of individual applications rose from 4,044 in 1988 to 20,538 in 1999 and to 26,398 in, 2000. In the first seven months of 2001, 20,739 applications were received; if the same rate were maintained for the rest of the year, the total number of applications received in 2001 would be 35,553.

7.        Unless immediate measures are taken, both short and long-term, and unless the Court is provided with the resources immediately required, it, together with the Convention system, will face a situation of crisis.

8.        Making available sufficient staff and financial resources will alleviate the alarming situation in the short term. Adaptation of working methods and procedures within the Court will also have an important contribution to make.

9.        However, the development of the direct application of the case-law of the Court by judges and courts in member states and the incorporation of the Court's case-law into the internal legislation of the member states should contribute towards reducing considerably the number of applications in Strasbourg.

10.        As long as there is an increase of applications there cannot be any question of "zero growth" in the financial means made available to the Court. Yet any growth in financial means must be sustainable and it is clear that, if the number of applications stabilises, there should also be budgetary stabilisation.

11.        All this must also be considered in the light of current developments in the European Union, notably the proposals to revise the EU treaties into an EU constitution which might possibly include protection of fundamental rights together with the Assembly's proposal for the accession of the EU to the Convention on Human Rights.

12.        However, whatever measures are to be taken, they should in no way hamper, hinder or restrict the free use of the right to individual application and any "filtering" system may only take place at the level of the Court according to its Rules and under the full responsibility of its judges.

13.        The Assembly appreciates the energetic action already undertaken by the Court itself and by the Committee of Ministers to respond to the situation, notably the preliminary increase in staffing resources provided in January 2001 and the decision to establish the Evaluation Group on guaranteeing the future effectiveness of the Court of Human Rights.

14.        The Assembly therefore recommends that the Committee of Ministers:

i.       reaffirm the core role and vocation of the Convention on Human Rights, in relation to all national and international legal systems in Europe, in maintaining stable and democratic society and upholding the rule of law and respect for human rights together with the indispensable role of the Court of Human Rights as ultimate guardian of the Convention;

ii.       express the political determination of the Council of Europe member states to guarantee the future effectiveness of these unique instruments by financing as well as by ensuring that decisions of the Court are properly implemented;

iii.       in the context of the follow-up to be given to the conclusions of the Evaluation Group, make available, as a matter of urgency, the necessary staffing and other resources to guarantee the short and long-term effectiveness of the Court of Human Rights, including the provision of the necessary addition accommodation in Strasbourg;

iv.       by treating the additional indispensable needs of the Convention system, including the Court, separately from the criteria applied by the Committee of Ministers in the adoption of the overall Council of Europe budget, ensure that future additional budgetary resources required will be made available without cost to other activities of the Council of Europe;

v.       launch preparations with all the interested parties for the drafting of an amending protocol to the Convention on Human Rights with a view to ensuring the long-term effectiveness of the Court of Human Rights.

II.       Draft order

The Assembly, with reference to its Recommendation … (2001) on structures, procedures and means of the European Court of Human Rights,

i.       instructs its Committee on Legal Affairs and Human Rights to follow closely the developments concerning structures, procedures and means of the European Court of Human Rights and to report back to the Assembly in due course;

ii.       instructs its Committee on Economic Affairs and Development to follow closely, for an opinion, all financial and budgetary matters in relation to the above.

III.       Explanatory memorandum

      by Mrs Nabholz-Haidegger, Rapporteur

A.       Introduction

1.        The main problem which the European Court of Human Rights is facing today is the steep rise in individual applications. Their number has grown by about 553% in the period 1988 to 2000 and the increase is likely to continue. Some figures and details will be given in chapter C. As a result of the huge number of applications there is a considerable backlog of cases pending before the Court, which has already taken a number of concrete measures and is considering ways and means of improving the situation. It is, however, clear that the problems involved cannot be solved by the Court alone and that action by the Secretary General, the Committee of Ministers of the Council of Europe and – indeed – its Parliamentary Assembly, is required as well.

B.       The right to individual application

2.        In accordance with Article 34 of the Convention, "The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the high contracting parties of the rights set forth in the Convention or the protocols thereto". In the past, the right to individual application had been an optional clause in the Convention which states were free to accept or not, but – after the entry into force of Protocol No 11 – this clause became automatic and an integral part of the Convention to which no reservations are admitted. The right to individual application is rightly considered as the cornerstone of the Convention as it created a system of protection of individual fundamental rights which is unique in the world. In considering how to improve the structures, procedures and means of the Court, one should therefore not impede this right to individual application. Of course the tremendous increase in individual applications may make some kind of measure necessary, but one should be very careful not to restrict or limit the exercise of this right. In fact, the Convention itself already obliges the Contracting Parties not to hinder in any way the effective exercise of the right to individual application (second sentence of Article 34).

3.        However, one will have to find a way to efficiently select the important and serious cases from all those numerous applications which are frivolous, unmeritorious, unclear or incomprehensible, without substance, etc. There may be a need to filter the applications, but one should carefully study beforehand any proposal to introduce, for instance, certiorari proceedings. There would also be a point in giving the Court the right to dismiss cases with little substance (de minimis non curat praetor). No doubt cases should be filtered but the filtering should take place within the system and in no case should they be left, for instance, to a national authority or an authority outside the Court system.

4.        The itinerary followed by an application after registration can be divided into three phases:

- phase A (first examination): if a matter is clear, the application will be declared inadmissible by a Committee of three judges (unanimity being required). If not, it will be referred to a Chamber of seven judges, who may decide that it is inadmissible;

- phase B (second examination): if not declared inadmissible by the Chamber, the application will be communicated to the respondent state for observations. The Chamber will subsequently issue a decision as to the admissibility of the application;

- phase C (final judgment): if the Chamber has declared the application admissible, it will subsequently deliver a judgment on the merits.

5.        A hearing may be held during phase B or phase C; otherwise, cases are examined in the light of written pleadings only.

6.        The Court considers that, ideally, a case should be finally disposed of within two years. Since this cannot be achieved in the current situation, it has set itself a "target for the handling of applications" of three years, comprised of twelve months for each of the phases A, B and C. Cases where this maximum has been exceeded, either overall or in any of the three phases A, B and C, are defined as "backlog".

7.        Roughly 50% of the applications are disposed of by the Court within one year of registration, but a considerable number is not terminated within the three-year target period.

C.1        The steep rise in individual applications – some statistics on the Court of Human Rights

8.        Interstate applications are rare. They are normally of an exceptional nature and they are therefore left out in the statistics of the Court. However, a single interstate application may mean a considerable workload for the Court. As far as individual applications are concerned, one notes a huge increase over the years. For instance:

Number of individual applications received:

in 1988: 4,044

in 1999: 20,538

in 2000: 26,398

9.        Thus the number of individual applications rose by more than 500% in the period under consideration and by some 28% in the last year. When it is abundantly clear that an application will not be admissible because one or several of the admissibility criteria laid down in Article 35 of the Convention are not met (such as non-exhaustion of national remedies, right not protected in the Convention or its protocols, expiration of the six months' delay, etc. the Registry of the Court will inform the applicant of the situation without registering the case. However, if the applicant insists his application will be registered anyway. In the Court's language one therefore speaks of provisional applications (the ones listed above) and registered applications, the figures for which are as follows:

1988:       1,013

1999:        8,402

2000: 10,486

10.        The increase in registered applications therefore was 935% over the full period and about 25% in 2000.

11.        No year between 1988 and 2000 saw a significant decrease in the number of applications, whether provisional or registered, so it can be said that there was a more or less continuous rise.

12.        Of the applications registered, few proceed to judgment on the merits. Of the applications disposed of by the Court in 2000 (with the 1999 figures in brackets):

- 6,774 (3,519) were declared inadmissible or struck out of the list (some 92% (79%) of these by unanimous decision of a Committee of three judges);

- 227 (39) were concluded by a friendly settlement;

- 695 (177) were the subject of a judgment on the merits;

- 15 (2) were otherwise disposed of (struck out after the admissibility decision).

13.        In accordance with the classification of the Court's Publications Committee, one may divide the judgments of the Court into four categories with the following result for 2000 (figures for 1999 in brackets):

Category 1 - leading judgments selected for publication: 94 (58)

Category 2 - judgments dealing with new questions but not of sufficient importance to justify publication: 35 (4)

Category 3 - judgments essentially applying standard case-law: 81 (28)

Category 4 - judgments concerning straightforward cases regarding allegations of excessive length of proceedings: 485 (87)

As the overwhelming majority of cases concerning excessive length of proceedings is from Italy any improvement in the situation there will immediately result in a relief for the Court of Human Rights.

14.        As at the end of July 2001, there were 18,292 registered applications pending before the Court (i.e. uncompleted cases, whether those waiting a first examination of admissibility or those at a later phase of the adjudication process). This figure represents an increase of nearly 45% in the number of such cases at the end of 1999 (12,635).

15.        Since the new Court commenced its activities, it has considerably increased its productivity, with the number of applications disposed of in 2000 drawing closer to the number of applications registered in that year. However, the Court did not have a clean slate in November 1998 as it inherited a number of cases from the former Commission and Court.1

16.        The Court receives 700 letters and 200 telephone calls from abroad every day and the backlog of cases is increasing rather than decreasing. The Court aims to keep the total length of proceedings to three years from the introduction of an application to the final decision on the merits but – given that the Court is as yet only three full years into the new system – it is difficult to state what is currently the average length of proceedings.

17.        The increase in applications can be explained by a number of factors. First there is the growing reputation of the effectiveness of the protection of individual rights and freedoms by the machinery set up under the European Convention of Human Rights. There is an increased knowledge of the Convention in our member states and some successful applications have had a snowball effect among the legal profession and the public in general. Then there is the increasing number of Council of Europe member states which has resulted in 19 ratifications of the Convention since 1990, increasing the number of potential applicants (if calculated on the basis of population) from 451 to 784 million.2

C.2       Will the number of applications continue to rise?

18.        It is easy to give a certain number of reasons to suggest that, in the future, the number of individual applications will continue to rise. But it is impossible to give concrete figures. First there are new ratifications to be expected from new member states of the Council of Europe. Any new member state is in fact expected to ratify the Convention and some of its protocols within a year or so of its accession. Many of the older member states have not yet ratified all the additional protocols and when they do so and when they reduce the number of their reservations to the Convention some more applications will be likely. The accession to the Convention of the European Union – as has been proposed by our Assembly on several occasions – may also bring about an increase in the number of cases. I am working on a report on new rights to be introduced into the Convention3 and – once new rights are introduced into the Convention – it is likely that there will be applications basing themselves on these rights.

19.        Further reasons for the continuation of the increase of the number of applications is the growth of the population in Europe and growing mobility, since foreigners may also consider themselves as victims of violations of the Convention and benefit from its protection.

20.        One may also give some reasons why the number of cases may decrease. Here an important reason may be better human rights protection at home. Thus it is to be expected that the Human Rights Act in the United Kingdom in the long term may bring about a decrease in the number of cases from the United Kingdom as British judges may now directly apply the Convention's provisions which have been made part of British law. It is also to be hoped that the large number of length of proceedings cases from Italy will end once the measures taken in application of the Convention and of the Court's case-law have shown their effectiveness

21.        Thus the "Pinto" Act provides for a consideration by the Italian appeal courts of pending length of proceedings cases. Consequently, in some twelve thousand cases, mainly unregistered applications, letters have been sent to the applicants drawing their attention to the existence of the Pinto Act remedy and pointing out that this may be an obstacle to their being found to have exhausted domestic remedies and that their applications may accordingly be declared inadmissible. In respect of applications already communicated to the Italian Government, the Government has raised a preliminary objection based on the effect of the Pinto Act and the applicants have been asked to submit observations on that issue. In addition a Chamber of the Second Section has declared an application (length of criminal proceedings) inadmissible for non-exhaustion on the basis of the Pinto Act.

22.        Thus it will be difficult to give any indications as to the number of future applications. It is even very hard to say what should be the average number of applications registered per one million inhabitants. Although they tend to increase for most member states – even for those which have already ratified the Convention a long time ago – this is not always the case and there are countries in which the number of cases has clearly decreased. For instance, in Belgium the number of registered applications was 13.4 in 1999 and 7.2 in 2000 per one million inhabitants. On the other hand, it is likely that the number of applications from Russia (9 per one million inhabitants in 2000) may increase to equal the number of applications from Poland (20.1%) or from France (17.6%) in 2000.

D.       Working methods and procedures of the Court

23.        Although it is permitted to make certain suggestions for the improvement of the Court's structures and its Rules of Procedures, one must be prudent not to encroach upon the Court's independence. There are, of course, a thousand and one ways to improve the efficiency of the Court and its registry. But, whatever action is taken, it must respect not only the European Convention on Human Rights, but also the important principles of the quality, impartiality, independence and confidentiality on which the work of the Court should be based. All 41 judges of the Court have different backgrounds and so have most of the registry officials. Many languages are spoken and used and, in fact, applicants may use any of the 37 official languages of our member states until the end of the admissibility procedure. Of course a Court must also respect the principle of coherence and in a multinational organisation this is even more difficult to obtain and to maintain than it already is in a national court. Cooperation and coordination between the different chambers of the Court must be assured and this too is not an easy task either.

24.        Among the proposals made at the ministerial conference on the 50th Anniversary of the Convention in Rome, was the proposal to simplify the admissibility procedures in cases which are clearly admissible. One can also think of simplified or standardised motivation of the Court's decisions – which computers will be happy to reproduce over and over again in those cases which are mere repetitions of a previous one. Here one can think of the hundreds of applications against Italy concerning the length of proceedings. No doubt one will always be able to find new ways to improve the Court's efficiency and one may say that it is now functioning much better than when it started in 1998. However, in the end it may be that further improvements could only be made by adding new judges and/or staff to the existing structure. Increasing the number of judges could only be done through a new modification protocol of the Convention and is therefore not a short-term solution. Adding new staff, to which I shall return below, has therefore become a necessity. It might imply that the staff of the registry should take over a number of tasks which are now being accomplished by the judges themselves. Yet, final decisions should never be taken by senior officials, however competent they may be, but belong to the domain of the judges themselves.

25.        Under the present working methods of the registry most applications are handled by staff of the same nationality as the applicant. This has considerable advantages as it reduces linguistic problems and as staff of the same nationality know the legal situation of the respondent country. It contributes to the efficiency of the Court, yet it also has a great disadvantage. Applicants turn to an international court or institution because they feel that they have been ill treated by their fellow countrymen and by the institutions of their own country. They are often disappointed when it appears that in Strasbourg fellow countrymen are involved in the handling of their case as members of an international team. This problem may seem somewhat cosmetic, and the integrity of the staff is certainly not in question, since it is in the end the judges who decide. Yet, it may result in a loss of confidence in the Court's impartiality by those who apply to it. It is therefore proposed to reconsider the system, even though it would imply reducing somewhat the efficiency of the Court's handling of cases.

E.       Action taken to improve the situation

1.       Action taken by the Court itself

26.        It is principally up to the Court itself to do whatever it can to improve its functioning. By doing so, it must, of course, remain within the confines set up by the Human Rights Convention. Thus it appeared that the committee system is very efficient. In accordance with the Convention, the Court's chambers (of seven judges) may set up, for a fixed period of time, committees of three judges which may consider cases before the Court. These committees may, by a unanimous vote, declare inadmissible or strike out of their lists of cases an individual application where such a decision can be taken without further examination. If the application is considered not to be inadmissible it must be dealt with by one of the chambers. In at least 80% of the cases the final decision (i.e. inadmissibility) is taken in committee. The remaining 20% of cases are more time-consuming and concern questions of admissibility and of alleged violations of the Convention. Their number is inflated due to the high number of length of proceedings cases from Italy.

27.        A further streamlining of the Court's work can – and to a large extent has already been – brought about by improving the situation and working methods of the Registry and by adapting the Court's Rules of Procedure. The Assembly elects one judge for each Contracting State (Article 20 of the Convention), but, in addition, outgoing judges may continue to deal with such cases as they already have under consideration (Article 23 § 7). The Convention therefore sets a limit to the number of judges4, but there is no such limit for the number of staff.

28.        In all, the Registry, as at 1 February 2001, was composed of 295 officials, 185 of them permanent. 196 of those are case-processing staff. The remainder are engaged in managerial, administration, translation and support duties.

29.        The preparation of cases for adjudication by judges is carried out in the 16 case- processing units each composed of a variable number of lawyers, an administrative assistant and a variable number of secretarial assistants. It follows that to increase case-processing capacity, it will be necessary to recruit additional lawyers and secretaries.

30.        There are three categories of lawyers currently working in the Registry: lawyers on permanent contracts ("permanent lawyers"), lawyers on temporary contracts ("temporary lawyers") and trainee lawyers. The permanent lawyers who now number 62 are the nucleus of the Court's processing units. They should be experienced and highly qualified after having been recruited through a competitive selection process, with the guarantee of independence offered by security of tenure. There should in principle be at least one such lawyer per Contracting State. The permanent lawyers are expected to concentrate on the more complex cases and supervise, when necessary, temporary lawyers and trainee lawyers of which there are, at the moment, 33 and approximately 20 respectively.

31.        Temporary lawyers, after initial training, perform tasks comparable to permanent lawyers, albeit in principle in less complex cases. The Court is thus afforded the necessary flexibility for dealing with caseload phenomena which may be of a temporary nature.

32.        Finally, there are the trainee lawyers who, in principle, assist the permanent and temporary lawyers. They are young, newly qualified lawyers who are being given the possibility of spending up to a year in the Registry on a remunerated traineeship providing assistance in the case-processing units. Like the temporary lawyers this serves the purpose of training national lawyers in Convention law, while providing a useful supplementary work force. Last but not least, there are the secretaries (60) who play an important and largely autonomous role in dealing with correspondence and, for example, registration of applications, entering information into the case-management database, preparing standard letters to the parties.

33.        It is clear that an efficient and competent registry may considerably reduce the workload of the judges who, consequently, should be able to handle a larger number of cases.

34.        It is clear that in the 21st century optimal efficiency can only be reached on the proviso that full use is made of modern information technology. Since 1966 the Court has developed an autonomous information technology with the following three main features:

- a client-server network for 350 users

- a sophisticated case-management system

- a case-law data base accessible through the Court's internet site

E.2        Action taken by the Committee of Ministers – the Budget

35.        Some states have offered to contribute on a voluntary basis to the Court more than they are obliged to. I greatly appreciate such a generous gesture but in the end think it is better for the independence of the Court if it is not "sponsored" in any way but financed solely on the basis of the agreed repartition of contributions from member states.

36.        Until now the budget of the Court has always been included as a particular vote in the general budget of the Council of Europe as a whole. The scale of the contributions of member states to the Court is thus the same as that of their contributions to the general budget. For a number of years the Committee of Ministers applied a policy of zero growth to the general budget of the Council of Europe. It has, however, had an open eye for the needs of the Court to which it did not apply this policy as is shown by the evolution of the budget of the Convention's institutions:

1997:       FF 145 million

1998:       FF 152 million

1999:       FF 164 million

2000:       FF 171 million

2001:       FF 190 million, including unspent appropriations for 2000

37.        In January last, the Committee of Ministers approved a special appropriation to cover the recruitment of 45 additional temporary lawyers and 15 additional secretaries and the maintenance of a scheme for trainee lawyers.

E.3        Action taken by the Committee of Ministers – the "Evaluation Group"

38.        Last February, the Committee of Ministers set up an "Evaluation Group", the aim of which is, with due regard to the judicial status of the Court under the Human Rights Convention:

a.       to examine matters concerning the observed and expected growth in the number of applications to the European Court of Human Rights and the Court’s capacity to deal with this growth; and

 

b.       to consider all potential means of guaranteeing the continued effectiveness of the Court with a view, if appropriate, to making proposals concerning the need for reform and report thereon to the Committee of Ministers.

 

39.        The members of the Evaluation Group are: Mr Justin Harman, Chairman of the Ministers’ Deputies’ Liaison Committee with the Court of Human Rights (who will Chair the Evaluation Group), Mr Luzius Wildhaber, President of the Court, and Mr Hans-Christian Krüger, Deputy Secretary General.

40.        The Evaluation Group is assisted by several of the General Directorates of the Council of Europe, the Parliamentary Assembly, as well as some of the Council's steering committees. It has the help of external experts and it should submit its conclusions and recommendations to the Committee of Ministers by the end of September 2001. I attended a meeting of the Evaluation Group on 9 July last.

E.4       Action taken by the Committee of Ministers – the Reflection Group on the Reinforcement of the Human Rights Protection Mechanism

41.        A reflection group was set up by the Steering Committee for Human Rights (CDDH) which is the main steering committee in this field. It held three meetings in the course of this spring and its activity report is now before the Steering Committee which will transmit its conclusions and recommendations to the Committee of Ministers.

E.5        Action taken by the Parliamentary Assembly

42.        No doubt many members of the Assembly take a keen interest in the functioning of the Court of Human Rights. This concern has been translated into a number of individual interventions in national parliaments and some members of the Assembly expressed their concern by tabling a motion on the structures, procedures and means of the Court during the January 2001 part-session of the Assembly. This motion has now been referred to the Committee on Legal Affairs and Human Rights for a report and to the Committee on Economic Affairs and Development for an opinion. Our Committee discussed the matter at several of its meetings on the basis of an introductory memorandum which I prepared in February and then held exchanges of views with Ambassador Harman, Chairman of the Evaluation Group, during the April part-session and with Mr Wildhaber, President of the Court, at its meeting on 5 June 2001. I attended a meeting of the Evaluation Group where I was able to express the wishes and concerns of the Assembly.

43.        The Committee on Economic Affairs and Development is likely to give full consideration to the budgetary aspects which are raised by this report.

F.       Proposals for improvement

44.        Roughly speaking, there may be three ways in which one could improve, facilitate and accelerate the work of the Court.

45.        Firstly, there are the working methods of the Court, the structure of its registry and the efficiency of its staff. These are matters which are primarily up to the Court itself to improve, sometimes with the help of others, e.g. management consultants, etc. The same can be said of the Rules of Court. They entered into force on 1 November 1998, together with the start of the new Court. Of course, they are for the Court to decide, on the condition that they are in conformity with the European Convention on Human Rights.

46.        Secondly, there are the financial means and the staff which are put at the disposal of the Court. Although the Registrar is elected by the Court and the way the registry is organised and staffed depends to a large extent on the Court, it is clear that the Court depends on the Committee of Ministers and member states for the means which are put at its disposal.

47.        Finally, there are the improvements which can only be brought about through a modification of the European Convention on Human Rights.

G.       Conclusions

48.        Member states themselves are also concerned since it is, in the first place, up to national authorities to implement the rights laid down in the Convention. The control mechanism of the Convention, in order to be effective, depends on a well-established national legal order. Any proposals for reform should therefore not limit themselves to considering the procedures of the Court itself. Lasting remedies can only be brought about by integrating the conventional norms into the national legal order. This, no doubt, is an important and challenging assignment for member states.

49.        It has been expressed many times that the right to individual application is the cornerstone of the Convention and that it should remain so. Everything should be done to guarantee that the exercise of this right is not hindered, that cases are handled rapidly and efficiently by the Court and that justice is done to the applicants. Article 6 of the Convention makes a reasonable delay an element of a fair trial and, no doubt "justice delayed is justice denied". Although the Court itself is not bound by Article 6 it itself is of the opinion – and rightly so – that cases should be handled within a time-limit of three years and that, if one is exceeding this time-limit and if there is a serious backlog of cases, that there is a serious problem.

50.        We may expect and, indeed, this is the clear impression we get, that the Court is doing everything itself to improve its procedures and trying to cope with the ever-increasing number of cases. There are however limits as to what the Court can do itself and it needs the full support of the Council of Europe, its Committee of Ministers and the Parliamentary Assembly. One should therefore not hesitate to give the Court all the financial and other means it needs, especially more staff.

51.        Given the pressure of work and means there is at the moment there is a tendency for cases to be handled by staff which has the nationality of the applicant. The Assembly thinks that one should do the utmost to avoid a national cluster which would give applicants the idea that they are not dealing with an international organisation but rather with a prolongation of their national administration. It is therefore important that language courses be provided both to judges and to staff and that improved chances of promotion be given to those who master several languages, especially when there are a great number of applications made in those languages.

52.        The credibility of the system depends on the quality of the Court's work. The Court's judgments must be clear and convincing. This is a condition for their acceptance and implementation by national institutions. For these reasons the Court needs highly competent judges. It is essential that the elected judges comply in all respects with the requirements of independence and impartiality. Even the slightest doubt about these two fundamental conditions may discredit the Court as a whole.

53.        At the level of judges it will be difficult to make firm proposals without changing the Convention itself, which would require – as is well known – a modifying protocol to be ratified by all Contracting Parties. Hopefully, however, the number of judges will increase to 47 in a not too distance future when all those states which are applying for membership status with the Council of Europe have been admitted and have ratified the Convention.

54.        Perhaps it may be necessary anyway to increase the number of judges in the Court in the future and if that is so, serious consideration should be given to the proposal. The Assembly may wish and would do well to follow the developments in the future and for that reason the report not only contains a recommendation, but also a draft order which would enable both the Committee on Legal Affairs and Human Rights and the Committee on Economic Affairs and Development to continue following the matter.

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 8862, Reference 2575 of 26 January 2001

Draft recommendation and draft order adopted unanimously by the committee on 10 September 2001

Members of the committee: Mr Jansson (Chairperson), Mr Magnusson, Mr Frunda, Mrs Gülek (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev, Mr Andreoli, Mrs van Ardenne-van der Hoeven, Mr Attard Montalto, Mr Bindig, Mr Bordas, Mr Brecj, Mr Bruce, Mr Bulavinov (alternate: Mr Shishlov), Mr Chaklein, Mr Clerfayt, Mr Contestabile, Mr Demetriou, Mr Dimas, Mr Enright, Mrs Err, Mr Evangelisti, Mr Floros, Mrs Frimansdóttir, Mr Fyodorov, Mr Guardans, Mr Gustafsson, Mrs Hadjiyeva (alternate: Mr A. Huseynov), Mr Holovaty, Mr Irtemçelik, Mr Jaskiernia, Mr Jurgens, Mr Kelemen, Lord Kirkhill, Mr Kostytsky, Mr S. Kovalev, Mr Kresák, Mr Kroupa, Mrs Krzyzanowska, Mr Lacăo, Mr Lento, Mrs Libane, Mr Lintner, Mr Lippelt, Mr Loutfi, Mrs Markovic-Dimova, Mr Marty, Mr Mas Torres, Mr McNamara, Mr Michel, Mr Moeller, Mrs Nabholz-Haidegger, Mr Olteanu (alternate: Mrs Cliveti), Mr Pavlov, Mr Pollo, Mrs Postoica, Mrs Pourtaud (alternate: Mr Dreyfus-Schmidt), Mr Rodeghiero, Mrs Roudy (alternate: Mr Le Guen), Mr Rustamyan, Mr Simonsen, Mr Skrabalo, Mr Solé Tura (alternate: Mrs Lopez Gonzalez), Mr Spindelegger, Mr Stankevic (alternate: Mr Landsbergis), Mr Stoica (alternate: Mr Coifan), Mrs Süssmuth, Mr Svoboda, Mr Symonenko, Mr Tabajdi, Mr Tallo, Mrs Tevdoradze, Mr Uriarte, Mr Vanoost, Mr Vera Jardim, Mr Wilkinson (alternate: Lord Rotherwick), Mrs Wohlwend, Mr Wojcik, Mrs Wurm

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the committee: Mr Plate, Ms Coin, Ms Kleinsorge, Mr Ćupina.

1 Some of the information in the above paragraph as well as in other passages of this report has been obtained with courtesy of the Evaluation Group and may therefore also figure in the report of that Group (see Chapter D.3).

2 Figure used in Council of Europe budget calculations, based on average population 1986-88.

3 See Doc 8727, Reference No 2512 of 15 May 2000.

4 At the moment there are 41 judges for the 41 Contracting States.