BACKGROUND DOCUMENT: 12 FEBRUARY 2008 MOSCOW SEMINAR ON REFORM OF THE ECTHR
Reform of the European Court of Human Rightsx
– Main proposals and selected responses
In recent years, several proposals to improve the efficiency of the European Court of Human Rights, as well as to improve protection regimes at the national level in order to reduce the number of applications to the Court have been submitted. The background for these proposals, is an exponential rise in the number of applications to the Court, which could seriously damage effective and timely functioning of the Court. A vast majority of applications (about 90%) is inadmissible, not fulfilling criteria to be handled by the Court. The process of identifying admissible cases takes up large resources, potentially jeopardizing the Court’s core function to protect and promote human rights. In 2004, member States of the Council of Europe adopted Protocol No. 14 to the European Convention on Human Rights, aiming at a partial reform of the Court’s procedures. Currently the Russian Federation is the only State Party which has failed to ratify the Protocol, due to a lack of a required qualified majority in the State Duma voting on ratification on 20 December 2006. A major part of the reform process is, therefore, currently frozen. There is a consensus among legal experts that Protocol 14 is a necessary although not sufficient initiative to reform the Court. New suggestions have been put forward to ensure a long term strategy to enable the court to fulfil its main functions: to make findings as to any violations by states parties and to “lay down common principles and standards relating to human rights and to determine the minimum level of protection which states must observe”.1
Protocol 14
Unlike Protocol No. 11, Protocol No. 14 makes no radical changes to the control system established by the Convention. The changes it does make relate to the functioning, not the structure of the system. Their main purpose is to give the Court procedural means and flexibility to process applications in a timely fashion, while allowing it to concentrate on the most important cases which require in-depth examination. To achieve this, amendments are introduced in three main areas: Reinforcement of the Court’s filtering capacity in respect of the mass of unmeritorious applications. The filtering capacity is increased by making a single judge competent to declare inadmissible or strike out an individual application. This new mechanism retains the judicial character of the decision-making on admissibility. The single judges will be assisted by non-judicial rapporteurs, who will be part of the registry A new admissibility criterion concerning cases in which the applicant has not suffered a significant disadvantage. The new criterion contains two safeguard clauses, providing the Court with an additional tool which would assist it in concentrating on cases which warrant an examination on the merits, by empowering it to declare
x
The document was drafted by the Norwegian Helsinki Committee research intern, Michela Costa, and edited by Deputy Secretary General Gunnar M. Karlsen.
1
Report of the Group of Wise Persons to the Committee of Ministers, page 11.
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BACKGROUND DOCUMENT: 12 FEBRUARY 2008 MOSCOW SEMINAR ON REFORM OF THE ECTHR
inadmissible applications where the applicant has not suffered a significant disadvantage and which, in terms of respect for human rights, do not otherwise require an examination on the merits by the Court. The new requirement contains an explicit condition to ensure that it does not lead to rejection of cases which have not been duly considered by a domestic tribunal. Measures for dealing with repetitive cases. The competence of the committees of three judges is extended to cover repetitive cases. They are empowered to rule, in a simplified procedure, not only on the admissibility but also on the merits of an application, if the underlying question in the case is already the subject of wellestablished case-law of the Court.
The wider 2004 Reform package
Protocol 14 is part of a wider Reform Package. Another element is to ensure enough resources for the Court, and a third element is improved execution of the judgments. A major challenge in this respect is to improve efficiency and transparency of the Committee of Ministers’ supervision of execution of judgments by member states, as well as to improve cooperation with other organs of the Council of Europe.2 Finally, the reform package provides for effective measures to be taken by member countries in order to prevent and repair violations of human rights. That could eventually lead to a decrease in the number of applications to the Court. There are a set of five recommendations to member states. They should: ensure re-examination or reopening of cases as a result of judgments by the Court ensure that the European Convention of Human Rights and its protocols, as well as case-law, is available for national courts and public administration strengthen teaching of European human rights standards in University and professional level education establish mechanisms to ensure compliance with these standards in legislation and public administration strengthen the right to have review and reparation of human rights violations at the domestic level
2
In accordance with Article 46 of the Convention as amended by Protocol No. 11, the Committee of Ministers supervises the execution of judgments of the European Court of Human Rights. This work is carried out mainly at four regular meetings (DH/HR meetings) every year. Documentation for these meetings takes the form of the Annotated Agenda and Order of Business. These documents are made public, as are, in general, the decisions taken in each case. The Committee of Ministers' essential function is to ensure that member states comply with the judgments of Court. The Committee completes each case by adopting a final resolution. In some cases, interim resolutions may prove appropriate. Both kinds of Resolutions are public.
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BACKGROUND DOCUMENT: 12 FEBRUARY 2008 MOSCOW SEMINAR ON REFORM OF THE ECTHR
The Report of the Group of Wise Persons
In 2005 the Committee of Ministers established a group of experts (named the “Group of Wise Persons”) to search for long-lasting solutions to the challenges of the Court.3 The group presented its conclusions to the Committee of Ministers in November 2006.4 By taking the Protocol No. 14 as a starting point, the aim of the report was to elaborate a broad set of ideas for a long-term strategy of reform of the Court. The Group’s proposals are presented under 10 headings: 1. Greater flexibility of the procedure for reforming the judicial machinery 2. Establishment of a new judicial filtering mechanism 3. Enhancing the authority of the Court’s case-law in the States Parties 4. Forms of cooperation between the Court and the national courts: Advisory opinions 5. Improvement of domestic remedies for redressing violations of the Convention 6. The award of just satisfaction 7. The “pilot judgment” procedure 8. Friendly settlements and mediation 9. Extension of the duties of the Commissioner of Human Rights 10. The institutional dimension of the control mechanism5 In the following, a few word of explanation of the main ideas is given. 1. Greater flexibility of the procedure for reforming the judicial machinery. In the Group’s opinion, a greater flexibility in the procedure for reforming the judicial machinery would be essential, in order to make the Convention system more adaptable to new circumstances. At present, every change to the Convention requires a standard amendment procedure, like the one that has been followed for the approval of Protocol 14. The Group proposes to establish a second level of rules, named “the Statute of the Court”, which could be modified “by way of unanimously adopted resolutions of the Committee of Ministers without an amendment to the Convention being necessary each time”6. The system would therefore be made up of three levels of rules: 1. The Convention and its protocols, for which the amendment procedure would remain unchanged; 2. The “Statute” of the Court, to be amended by the Committee of Ministers with the Court’s approval; 3. The Rules of Court, to be amended by the Court itself. Some provisions of the Statute (such as those articles referring to substantive rights or the key principles governing the judicial system) would be excluded from any possibility of simplified amendment.
3 4
The Russian member of the group was Mr Veniamin Fedorovich Yakovlev. The report is available at: https://wcd.coe.int/ViewDoc.jsp?id=1063779&BackColorInternet=9999CC&BackColorIntranet=FFBB55&BackColorLogge d=FFAC75. 5 Report of the Group of Wise Persons to the Committee of Ministers, CM Documents No. CM(2006)203, 15 November 2006, par. 39. 6 Par. 44.
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BACKGROUND DOCUMENT: 12 FEBRUARY 2008 MOSCOW SEMINAR ON REFORM OF THE ECTHR
2. Establishment of a new judicial filtering mechanism. A main concern, when introducing changes of the Court’s filtering procedures for applications, is to maintain the right to individual petition. This right should remain a core character of the Court system. The Group has therefore searched to relieve the Court of the burden of processing manifestly inadmissible or repetitive cases, while maintaining the right of individual application untouched. The proposal consists in the creation of a new filtering body that should be attached to the Court, the Judicial Committee. It should be composed of judges enjoying full guarantees of independence, and would have the jurisdiction to hear: 1. “All applications raising admissibility issues; 2. All cases which could be declared manifestly well-founded or manifestly ill-founded on the basis of well-established case-law of the Court”.7 The Judicial Committee would filter the applications, and it would refer a case to the Court only if it entailed substantive or fundamental issues. By doing so it would ensure, on the one hand, that all individual applications result in a judicial decision and on the other, that the Court is relieved of a large number of cases, enabling it to focus on its essential role. The duty to decide whether a case should be referred to the Judicial Committee or to the Court would be assigned to the Registry. The decision of the Judicial Committee should be without appeal, unless the Court itself decides to reopen the case. 3. Enhancing the authority of the Court’s case-law in the States Parties. State Parties should ensure translation and dissemination of the Court’s decisions in their countries, “particularly within institutions such as courts, investigative bodies, prison administrations and non-state entities such as bar associations and professional organizations”.8 4. Forms of cooperation between the Court and the national courts: Advisory opinions. In general, the role of national courts should be reinforced, principally referring to the duty to “guarantee the effectiveness of domestic remedies and, where appropriate, to award just satisfaction and proper execution of the Court’s judgments”.9 Furthermore, it is proposed that national courts should be able to apply to the Court for advisory opinions on legal questions relating to the interpretation of the Convention and the protocols thereto. Due to the risk of increasing the Court’s workload, though, this new advisory jurisdiction should be subject to strict conditions. Only Constitutional Courts or courts of last instance should be allowed to apply for the Court’s advice, which should be restricted to questions of principle or general interest. In any case, the Court should be free to refuse to answer with no need to explain the reasons of its denial. 5. Improvement of domestic remedies for redressing violations of the Convention. Emphasis should be put on the issue of domestic remedies. A binding, convention should be introduced in order to compel the States to create some kind of domestic procedure to redress violations to the Convention. Special attention should be given to those systematic violations resulting
7 8
Par. 55. Par. 74. 9 Par. 77.
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from a wide-ranging inadequacy at the State’s legislative or judicial level. The mechanisms should be consistent with some general criteria, according to specific Court’s guidelines.10 6. The award of just satisfaction. Relating to the issue of awarding just satisfaction to a victim of a violation, the Group believes that the rule should be that the decision on compensation should be delegated to the State Parties. Each State should appoint a responsible legal body, which should deliberate on the amount of compensation within a precise deadline, established by the Court or the Judicial Committee. The decision of the national body could, however, be challenged by the victim if he/she believes that it is not consistent with the Court’s criteria (as established by the Court’s caselaw), or if the State has not provided the awarding of just satisfaction within the time-limit. 7. The “pilot judgment” procedure. The “pilot judgment” procedure refers to situations where “the facts of a specific case disclose the existence, within the [domestic] legal order, of a shortcoming as a consequence of which a whole class of individuals have been or are still denied the peaceful enjoyment of [a right safeguarded by the Convention]”.11 Some structural or systemic problems of a national legislation (such as legislative provisions affecting a large number of people) can in fact result in a huge amount of repetitive cases for the Court. In similar cases one single judgment of the Court could potentially avoid, if correctly implemented by the State Party, the systematic violation to occur. The judgments in which the Court has identified a systemic problem are called “pilot judgments”. When supervising the execution of its rulings the Court should therefore focus on the pilot judgments, as they play a crucial role in order to reduce the risk of a large number of repetitive, well-founded applications to rise. 8. Friendly settlements and mediation. Protocol 14 introduced the method of mediation between the parties, with the aim to achieve a friendly agreement instead of undertaking legal proceedings. This mechanism, in the Group’s advice, should be encouraged both at the national level and within the Council of Europe’s system. 9. Extension of the duties of the Commissioner of Human Rights. The Council of Europe’s Commissioner of Human Rights (appointed by the Committee of Ministers in May 1999) should be more actively involved in the Convention’s control system, especially referring to the promotion and dissemination of the Court’s judgements.12 He/she should be enabled to perform a role of control on the alleged violations within the States Parties, and enhance connections with national Ombudsmen. The commissioner should engage to create a network with other national human rights institutes to spread information and take action in cases of alleged breaches of the Convention.
10
The guidelines should be those set out by the Court in the SCORDINO v. Italy Grand Chamber judgment, No. 1 of 29 March 2006 – no 183). 11 ECtHR, judgement Broniowski v. Poland of 22 June 2004, no. 31443/96, ECHR 2004-V. Cfr. Report of the Group of Wise Persons, cit., par. 101. 12 Resolution (99) 50 on the Council of Europe Commissioner for Human Rights, 7 May 1999.
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BACKGROUND DOCUMENT: 12 FEBRUARY 2008 MOSCOW SEMINAR ON REFORM OF THE ECTHR
10. The institutional dimension of the control mechanism. A few institutional changes have been considered by the Group of Wise Persons in order to improve the Court’s efficiency and independence. Firstly, the absence of any social security program for the judges is still a serious defect of the Court system and should be remedied as soon as possible. Secondly, during the election procedure for new judges a higher attention should be paid to the candidates’ professional competences and knowledge of languages. Thirdly, the Group proposes to reduce the total number of judges, at present based on the number of State parties. It suggests introducing a rotation system, similar to those adopted by other international Courts such as the International Court of Justice or the Inter-American Court of Human Rights. The same principle should be adopted for the number of judges who are part of the Judicial Committee. Finally the Group considers crucial, in order to ensure the highest level of independence, to preserve the Court’s autonomy as regards budget and staff administration.
Reactions to the proposals
Several organs of the Council of Europe, expert conferences and NGOs have discussed the proposals of the Group, as well as adding new proposals. Member states have also been invited to hold national consultations on the reform issue.13 Here follows some remarks about some of the evaluations that have been presented. 2 April 2007 Opinion of the Court: In general, the Court is positive to the proposals. It has however a few remarks on the introduction of the advisory opinions’ system. This new “advisory jurisdiction” would unavoidably increase the Courts workload. It would be preferable to postpone discussion on this proposal until the other proposed reforms have succeeded at improving the present system. On remaining issues, the Court endorses proposals on adopting an easily amended Statute of the Court as well as the establishment of a Judicial Committee. It welcomes proposals for improvements of States Parties in translating and disseminating the Court’s case-law, as well as an increased focus on improving domestic remedies. The Court is sceptical of a delegation of decisions of just award to States Parties: “the Court is not persuaded, however, that this is a task that would as a rule, be more efficiently handled by a judicial body at national level”.14 In order to ensure a high level of protection for the victims of violations, “rigorous institutional and procedurals safeguards would have to be put in place” within all the State Parties.15
13
In Norway, the Ministry of Foreign Affairs conducted two meetings with a broad range of professional organisations, academic institutions and NGOs to discuss the proposals of the Group of Wise Persons, as well as to develop supplemental proposals. It its not known to the Norwegian Helsinki Committee whether other national authorities have conducted similar consultations. 14 European Court of Human Rights, Opinion of the Court on the Wise Persons’ Report (as adopted by the Plenary Court on 2 April 2007), par. 6. 15 Ibid.
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Proposals of a pilot judgment procedure, friendly settlements and extension of duties of the Human Rights Commissioner are endorsed. On the proposal to reduce the number of judges, the Court considers it a highly delicate issue, and reminds of the fundamental role played by the principle of representation of each member State in the Court in order to protect legal pluralism within the Council of Europe. In conclusion, the Court supports the majority of the proposals, and declares its own will to proceed and take further steps in order to actively promote reform. Opinion of NGOs: Experts and NGOs working in the field of human rights are obviously engaged in debates about the future of the Court, which is by far the most important European human rights mechanism. A group of international human rights NGOs have published their own assessments of proposals for reform of the Court.16 Some of their key points are rendered here. A main concern of the NGOs is to protect the fundamental right to individual application to the Court, “the right of individuals to receive a binding determination from the European Court of Human Rights as to whether the facts presented in admissible cases constitute a violation of the rights enumerated in the ECtHR”.17 In general, the NGOs identify seven objectives as key requirement of the reform project: 1. Promulgation of the Convention within the member States, in order to minimize the necessity to apply to the Court; 2. Maximum preservation of the right of individual application; 3. “Efficient, fair, consistent, transparent and effective screening of applications received”, in order to remove those which are inadmissible;18 4. Speeding up the handling of admissible cases covered by clear case-law or revealing systemic shortcomings (repetitive cases); 5. Enhancing the effectiveness of the execution of judgments within State Parties; 6. Increasing the Court’s budget (but not at the expenses of other human rights mechanisms); 7. “Transparent expert monitoring and assessment of the impact any reforms agreed on have on the workload of the Court, and their effect on the right of individual application”.19 On the proposals of the Group of Wise Persons, several comments were made. Steps at the national level: In order to achieve improvements of the Court’s system, the priority should be on obtaining respect of the Convention at the national level. States should ensure effective remedies and by conduct structural changes which are necessary to prevent repetitive cases. For example, 25% of the admissible applications are related to so-called “length of proceedings” cases: the national Governments should not only provide compensations for the victims, but also actively promote legislative or judiciary reforms to ensure long-lasting solutions.
16
See ”Council of Europe: Ensuring the long term effectiveness of the European Court of Human Rights – NGO comments on the Group of Wise Persons’ Report”, URL: http://web.amnesty.org/library/print/ENGIOR610022007 Amnesty
International, European Human Rights Advocacy Centre, Human Rights Watch, INTERIGHTS, Justice, Liberty, Redress and The AIRE Centre contributed to the report.
17 18
Op.cit. par. 3. Op.cit. par. 9. 19 Ibid.
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The Committee of Ministers should consider national implementation of the ECtHR as a priority, and put political pressure on those States that are not complying with the Court’s judgments. In particular, the Committee should supervise the implementation of the several Recommendations adopted by the Committee regarding respect of the Convention at the national level and on the importance of effective domestic remedies. On the issue of a strong relationship between the Council of Europe’s Commissioner for Human Rights end national Ombudsmen; the NGOs remind that in several States the independence and effectiveness of the latter is not guaranteed. The functioning of national Ombudsmen should be monitored in order to ensure respect of some minimum standards. The NGOs endorses the proposal of establishing Council of Europe Information Offices with a mandate to inform about the Court.20 Some concerns, however, are expressed on Council of Europe personnel advising on whether to submit an application to the Court. To avoid a conflict of interest this role should be delegated to independent advisers, coming from lawyers and human rights organizations. Reform of the European Court of Human Rights: While appreciating the decision of the Group not to propose giving the Court a discretionary powers whether or not to take up cases, the NGOs are concerned of the terminology adopted in the Report when addressing the issue of the filtering mechanisms. The Group in fact argue that manifestly inadmissible and repetitive applications “distract” the Court from its essential role. A high number of applications are unavoidable, as “there is no way to prevent people to send applications to the Court”21. And repetitive cases, “rather than being a «distraction» […] are almost invariably indicative of a systemic problem within a State that needs to be addressed”.22 The NGOs support the proposal of establishing a Judicial Committee as a filtering body. The NGOs welcome the initiative to create a Court’s online application form, but warn not to introduce it as the only type of application accepted since this could make it impossible for vulnerable individuals that to apply to the Court. The proposal on “pilot judgements” raises issues that would deserve further consideration in the future, according to the NGOs. The NGOs opposes strongly the proposal to delegate to States Parties the decision on just satisfaction, since this would involve a: 1. high probability of further increasing delay in delivering the decision; 2. risk to facilitate the creation of different standards for the amount of compensation within different countries, with the risk of discrimination among victims;
20
This proposal is contained in the introduction pages to the Report: “The Group noted with great interest the lessons drawn from the Warsaw information office project. In view of the success of this innovative initiative, the functions of such offices could be expanded and strengthened. In particular, they could provide potential applicants with information on admissibility issues and familiarise them with the existing domestic remedies and other, non-judicial remedies. These offices could assist in making citizens more aware of how the Convention operates and so save them from initiating proceedings unnecessarily or prematurely, without exhausting domestic remedies”. Report of the Group of Wise Persons to the Committee of Ministers, cit., par.19. 21 NGO comments on the Group of Wise Persons’ Report, cit., par. 24. 22 Op.cit. par. 25.
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3. Potential increase in the monetary expenses for the applicants, who should pay fees of new proceedings. The NGOs supports instead the idea to establish a special unit within the Court’s Registry, entitled with the just satisfaction issues. Finally, the advisory opinion system has been endorsed, although with several additional recommendations.23 Institutional status of the Court and the judges: The NGOs support the Group’s main proposals concerning requirements of highest professional qualification and proved knowledge of language for the candidates judges. Lack of financial resources is considered by the NGOs as a matter of high concern. The Council of Europe’s general budget should be increased in order to finance the expenses of the Court, without at the same time penalising other organs of the Council of Europe. The creation of a Statute of the Court is welcomed in principle, but with some reservations. The NGOs suggest that the Committee of Ministers in carrying out a simplified amendment procedure has to meet requirements of transparency and consultation with civil society. The NGOs strongly asks for “the Council of Europe and each of the 46 member States to ensure that the public (and in particular Court users, civil society and national human rights institutions) is informed about the on-going discussion on the reform of the Court”.24 In fact, no step should be taken without involving those actors in consultations.
23 24
Op.cit. par. 40. Op.cit., par.50.
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