26th Session of the Congress of Local and Regional Authorities – 25 to 27 March 2014

Best practices of implementation of human rights at local and regional level in member states of the Council of Europe and other countries

Statement by Lawrence EARLY, Jurisconsult, Registry of the European Court of Human Rights

25.03.2014

The Court is pleased to have been invited to this exchange of views. It is important that the institutions of the Council of Europe listen to each other and benefit from their respective competencies, skills, information resources and knowledge.

The Court is a unique and precious mechanism for the protection of human rights. It is charged under the Convention with the task of supervising the respect by the High Contracting Parties of their obligations under the treaty.

The Court’s examination of the admissibility and merits of a case does not unfold in a vacuum. True, it has its previous case-law to draw on when adjudicating on the issues raised by a particular case. In the great majority of cases, it need not look beyond precedent. However, the Court has in many cases shown its readiness to enrich its reasoning and to strengthen its conclusions by having recourse to what is referred to in its judgments as: “Council of Europe and Other International Sources”.

The Court has frequently prayed-in-aid the reports and recommendations of the Council of Europe Commissioner for Human Rights. The Commissioner has in fact a right to intervene in proceedings before the Court and to offer the Court his particular insight into particular matters raised before it.

The European Union Agency for Fundamental Rights is also an immense source of data and analysis of great relevance to Convention litigation. The Court and the Agency have established excellent channels of communication and have agreed modalities for fostering co-operation in the areas of information collection, research and publications. The excellent collaboration between the Court (and the Council of Europe in general) and the Agency is borne out by a series of  joint initiatives leading to the publication of handbooks in the areas of non-discrimination, asylum and refugee law and, most recently, data protection. We have made available copies of these handbooks in a variety of languages, and I commend them to the Congress. They are an extremely important contribution to the promotion of greater awareness of key principles among legal professionals as well as law and policy makers at central, regional and local level. Is there a possibility for a collaborative venture between the Congress and the Agency leading to the publication of a handbook on the protection of human rights at the local and regional levels? I leave the question with you.

I turn more specifically to the Congress.

The work of the Congress too can be considered a possible point of reference for the Court’s adjudication, especially when it comes to issues which are peculiarly within the ambit of local and regional powers. Let me illustrate: In the case of Sukran Aydin and Others v. Turkey (nos.  49197/06 et al.), the Court was called upon to examine the convictions of candidates in both municipal and parliamentary elections for having spoken Kurdish during their election campaigns. The Court’s judgment refers to Point 5.d of Recommendation 273 (2009) of the Congress of Local and Regional Authorities.

The Secretariat has kindly provided me with a compilation of policy statements and instruments which have been adopted by the Congress. You will be heartened to learn that the majority of these materials were already familiar to me. The Court’s Research and Case-law Information Divisions are particularly skilled in ensuring that the Court is well-resourced when it comes to harvesting Convention-relevant legal and policy materials.

The Congress’ initiatives are to be applauded. I refer in particular to the Draft Resolution before the Congress this week on “Best practices of implementation of human rights at local and regional level in member States of the Council of Europe and other countries”. The draft is full of strategic vision. No one could object to the idea which runs through the text as proposed, namely human rights have to be taken into consideration in daily decisions and activities undertaken by elected representatives, in order to improve their implementation at all levels of governance. This message is very much in line with the Court’s own attachment to the principle of subsidiarity. In other words, the protection of Convention rights is best secured at the domestic level and there is no better place to begin than at the local and regional levels.

I repeat. It is important that the Court be made aware of the existence of legal and policy materials of relevance to the guarantee of Convention rights and freedoms at the local and regional levels. We look forward to the adoption of the Best Practices Resolution. It is equally important that the Congress be regularly apprised of the Court’s jurisprudence which has a bearing on the exercise of power and discretion at the local and regional levels. I would suggest that consideration could be given to the establishment of a liaison officer within the Court’s Registry who could be contacted periodically by  the Secretariat of the Congress regarding case-law developments of interest to the Congress’ activities.

Notes on local and regional authorities in Convention proceedings

Local and regional authorities exercise public power. That self-evident statement entails they are obliged to take into account the implications which their regulatory measures, decisions and their exercise of discretion have for the Convention rights and freedoms of individuals. The case-law of the Court abounds with examples of interferences with Convention rights which have as their origin acts or omissions of local and regional authorities. At the same time, it must be said that in many cases, the Court has found that the impugned interferences were in the final analysis found to be justified.]

I have provided the Secretariat with a report drawn up by the Court’s Research Division which illustrates the various types of cases which the Court has had to deal with and which are backlit by the exercise of powers at the local and regional level. The report is not exhaustive. I revert to my earlier suggestion. The Congress should be periodically informed of case-law developments which impact on the protection of human rights at the local and regional levels. One way of doing so would be to ensure that the report is kept up-to- date in the light of new case-law and made accessible to the Congress secretariat.

To economise on time, I will not go into the details of those cases.  I am of course prepared to do so during the exchange of views if necessary.

The cases mainly concern the role of local and regional authorities in the area of child-care proceedings, public housing, environmental protection, planning and expropriation, enforcement of final judgments given against local and regional authorities, authorisation of demonstrations, etc.  Looking generally at the case-law, the following appear to be relevant and important principles for local and regional law makers and decision-makers:

(i) the need to be attentive to the respect for human dignity when it comes to places of detention, including prisons, psychiatric institutions and immigration and asylum centres. Indeed there is   a general requirement for decision-makers to ensure respect for human dignity in all aspects of their dealings with individuals. This also applies to non-discrimination.

(ii) the need to ensure that local policing is organised in a Convention-compliant manner. This requires, for example, that a clear regulatory framework is in place governing the use of firearms and that police officers are properly instructed on the circumstances in which it is justified to have recourse to the use of firearms or to employ force in order to apprehend suspects.

(iii)  the exercise of powers at local and regional level to deprive persons of their liberty must have a clear basis in law and particular importance must be accorded to the proportionality of the deprivation in any given case.

(iv) the taking of children into care must have a clear legal basis. The decision-making procedure accompanying a decision to take a child into care must be accompanied by procedural safeguards in order to protect the interests of the parents or parent. Particular weight must be given to the proportionality of a decision to take a child into care in any given case.

(v) refusing permission for a proposed demonstration or assembly must also be in accordance with law, and must respect the principle of proportionality.

(vi) the expropriation of land can only be effected if there exists clear authorisation in law for doing so. The expropriation must be justified with reference to public interest considerations. Decision-makers must ensure that procedural safeguards are present in order to avoid arbitrariness. Compensation commensurate with the nature of the land to be expropriated needs to be guaranteed.

(vii) individuals must have at all times an effective remedy to allow them to contest the decisions made by local and regional authorities  in all areas which affect their Convention rights.

This is of course a rather general overview. Constraints of time do not allow me to elaborate further. We can go into further detail if you so wish. However, this rather short survey illustrates recurring themes. The exercise of public power must be conditioned by:

I would like to highlight a couple of case-law matters which may have particular resonance for the representatives of local and regional authorities.

The first concerns the budgetary connections between local and central government.

DE LUCA v. Italy, no. 43870/04, 24 September 2013

Following civil proceedings initiated in 1992 the applicant eventually obtained a judgment against a local authority, requiring it to pay him compensation. The judgment became final in 2004. In the meantime, the local authority was declared bankrupt and the administration of its assets was entrusted to a commission. In accordance with the relevant legal provisions, creditors, including those like the applicant who had obtained final judgments in their favour after the act of bankruptcy, could not secure the enforcement of their judgment debts. Rather, they had to await the presentation by the commission of the accounts for approval. This procedure has still not been completed and the applicant has still not been paid. He refused to accept the Commission’s offer to pay him 80% of the amount owed by the local authority.

This is the first occasion on which the Court has been called on to address the impossibility for an applicant to recover a final judgment debt in its entirety from a municipality subject to a receivership procedure.

The Court rejected the Government’s arguments that the local authority’s bankruptcy was a justifying factor for the failure to pay the entire sum owed to the applicant and that the offer to pay 80% of the amount in full and final settlement of the debt had been motivated by the intention to ensure equality of treatment of the local authority’s creditors. The Court’s response was clear: firstly, the local authority was an organ of the State and was required in the instant case to honour a debt which had been contracted by virtue of a final court judgment; secondly, the local authority’s lack of resources could not be invoked to excuse the failure to pay the whole of the debt. On that account there had been a breach of the applicant’s right to the peaceful enjoyment of his possessions and of Article 6 (the right to a fair trial which also extends to the right to have the judgment in one’s favour enforced within a reasonable time).

I would conclude this section by making two final observations drawn from the Court’s jurisprudence.

Firstly, it is still the case that local and regional authorities do not enjoy standing to introduce applications against the State of which they form part. [time permitting: The Court confirmed this approach in the case of Demirbaş and Others v. Turkey (nos. 1093/08 et seq,. a decision of  1 December 2010). In that case a number of municipal councillors, acting in a personal capacity, lodged applications with the Court. They contested the dissolution of the council for using non-official languages in the course of its activities. The Court declared the applications inadmissible.

It reiterated that local authorities did not have standing to lodge an application with the Court, and nor did the members of a dissolved municipal council. It observed that neither local authorities nor any other government bodies may lodge applications through the individuals who make them up or represent them when such applications relate to acts punishable by the State to which they are attached and on behalf of which they exercise public authority.

Secondly, local and municipal elections continue to fall outside the scope of Article 3 of Protocol No. 1 to the Convention. Article 3 obliges the High Contracting Parties to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

To illustrate, in the case of Salleras Llinares v. Spain ((dec.), no. 52226/99, ECHR 2000‑XI, 12 October 2000), the applicant complained about the refusal to declare a list of candidates eligible for municipal elections. The Court noted that the issue before it related to elections to the municipal council of Cadaqués. It added that municipal councils clearly do not exercise legislative power and do not therefore form part of the “legislature” within the meaning of Article 3 of Protocol No. 1.

Enhancing the efficiency of the Court: the relevance of local and regional authorities

As you know, the sheer volume of cases which are filed with the Court have created enormous problems for its ability to process them efficiently and in accordance with their relative importance. A considerable number of these cases raise serious human rights issues and are still awaiting a final examination by the Court, many years after they were lodged with it. This is the unacceptable side of the so-called backlog phenomenon.

The  Court has been engaged in intense reflection on how to improve its efficiency in the wake of the so-called Interlaken process.

It is pleasing to be able to report that it has made considerable progress in reducing its backlog. Approximately two years ago, it had on its docket 160, 000 applications. Today the figure stands at 98,416 cases pending before the Court.

The case load can be broken down as follows:

7,759 are marked as priority cases. These cases are considered to raise serious human rights issues and need to be treated as a matter of priority. For example, cases involving a risk of irreparable harm to the life or integrity of the applicant, or which concern overcrowding in prisons, or which give rise to allegations of arbitrary arrest, or cases in which the care and custody of children are at issue, or which indicate the existence of a structural dysfunction in the legal system of the State concerned. How many such cases have their genesis in the acts or omissions at the local and regional level, I am unable say.

18,180 cases raise arguable complaints of a breach of Convention rights, but they are not given the same priority treatment as cases falling within the earlier category. Such cases may concern allegations that applicants did not receive a fair trial in proceedings against a local or regional authorities, or that a local or regional authority practiced discrimination in the allocation of social housing or that a local or regional authority unlawfully banned a demonstration or refused an application for planning permission, or failed to pay adequate compensation following an expropriation of land. Once again, the statistics do not provide further detail on the source of the alleged breach of Convention rights – central government or local or regional government.  

41,641 cases are what are called “clone” or repetitive cases (42% of the total number). I would like to say a few words on the nature of such cases, since they may have their origin in the acts and omissions of local and regional authorities.

These cases are born out of structural or systemic problems which have been identified by the Court in its judgments against certain Contracting States. Such problems may take the form of the failure of a State’s legal system to deal with domestic civil and criminal proceedings within a reasonable time, or to enforce final court judgments awarding individuals compensation or some other measure in their favour against the State. Prison overcrowding has been found by the Court to be a systemic problem in several Contracting States, as has failure to pay adequate compensation following an act of expropriation, or to restore land in the manner ordained by relevant legislation. 

All such systemic and structural cases share a common theme, namely the absence of a remedy at the domestic level to enable individuals concerned to secure redress – for example to require the prison authorities to provide them with Convention-compliant cell space, or secure the enforcement of a final court judgment handed down against a central, local or regional authority  It is precisely the absence of an effective domestic remedy that leads to the filing of such cases with the Strasbourg Court. This is of course contrary to the principle of subsidiarity, which preaches that the protection of human rights guaranteed by the Convention is first and foremost the task of the Contracting States.

Finally, 30,836 cases are earmarked for disposal by a Single Judge formation since they are considered to be clearly inadmissible (31% of the total docket).

The Court has made creative use of the powers available to it reform its internal procedures in the interests of efficiency. It has overhauled its filtering procedures and working methods with a view to the rapid identification of the issues raised by the very many applications which are filed with it. A separate Filtering Section has been created and tasked with the management of the flow of new applications, sifting them so that Chamber cases can be isolated from clearly inadmissible or Single Judge cases.

If applications are seen at the filtering stage to be without merit – for example, the applicant has not exhausted domestic remedies in respect of his or her complaints – the case will be allocated to a Single Judge for expeditious disposal. As regards these sorts of clearly inadmissible cases, the policy is to dispose of them on a one-in one-out basis, while ensuring that safeguards are in place in order to avoid any appearance of arbitrariness.

This one-stop treatment has enabled the Court to cut through the backload of clearly inadmissible cases which for years had blighted the Court’s statistics and prevented it from addressing the meritorious cases on its docket.

The Court, as noted above, has developed a prioritisation policy for the treatment of cases and has strengthened its capacity to reduce further the current backload by encouraging Contracting States to second judges and lawyers to the Court in order to reinforce the current Registry staff. It has developed more effective procedure for the treatment of clone cases, thanks in particular to what is called the “pilot-judgment procedure”. It has also fine-tuned its procedure for the communication of cases to governments and has successfully introduced a centralised system for the processing of the very many requests for interim measures which are filed with it. Decision-making on these requests is now assigned to a limited number of Duty Judges appointed by the President of the Court.

Many other strategies have been developed in order to expedite the processing of cases. Allow me to focus briefly on a number of other initiatives.

1.         E-justice policy

It is essential to harness technology in the interests of efficiency, and to that end the Court has pursued a forward-looking e-justice policy. It has a highly effective IT system, and a powerful HUDOC database offering high performance on-line search and research facilities. Furthermore, the Court’s webpage has been developed in order to make it more information rich for the benefit of applicants and Governments. Policy and decision-makers at the local and regional levels should be encouraged to consult the webpage.

2.         Information and translation initiatives

The need has been identified to improve the accessibility and understanding of the main Convention principles and standards in member States where neither of the Court’s official languages is sufficiently understood.

In order to address this issue, the Registry launched a specific project in 2012 for translating key case-law – principally the leading cases -  into twelve target languages with the support of the Human Rights Trust Fund. The beneficiary States of this three-year project are Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, the Republic of Moldova, Montenegro, Serbia, “the former Yugoslav Republic of Macedonia”, Turkey and Ukraine. Since the beginning of this project, some 2,500 translations have been commissioned. In addition to the languages covered by the HRTF-supported project, the Registry has also outsourced case-law translations into Bulgarian, Greek, Hungarian, Russian and Spanish.

The translations, which are commissioned from external translators, are included in the Court’s HUDOC database and further disseminated by national-level partners. The Registry has extended a standing invitation to Governments, judicial training centres, associations of legal professionals, NGOs and other partners to offer, for inclusion in HUDOC, any case-law translations to which they have the rights. The Registry also references on its website third-party sites hosting translations of the Court’s case-law and welcomes suggestions for the inclusion of further sites.

As a result of the translations programme, over 10,000 texts in twenty seven languages (other than English and French) have now been made available in HUDOC, which is increasingly serving as a one-stop shop for translations of the Court’s case-law.  I would suggest that the translations of the Court’s case-law will also be of major benefit to policy and decision-makers at the local and regional levels.

3.         Publications

The  Court has prepared a guide on the Convention’s admissibility requirements as interpreted in the case-law. The utility of this guide has been applauded.  It has been translated into over twenty languages and is available on-line. The Court is also publishing  information about the case-law under the different Articles of the Convention. I would suggest that these guides would also be of great interest to those responsible for the elaboration and implementation of policies at the local and regional levels.

4. Training unit

Following a proposal from the Court, the Human Rights Trust Fund approved funding for the setting up of a Training Unit within the Court. This project is directed at specific States, and aims to provide professional groups (magistrates and lawyers) with high-quality training in Convention law and practice. Since the beginning of 2012 six training sessions have been organised for magistrates and lawyers from Albania, Armenia, Azerbaijan, Georgia, Moldova, Montenegro, and Serbia. Could Congress give consideration to a similar initiative for the benefit of policy and decision-makers at the local and regional levels?

Conclusion

Enhancing the Court’s effectiveness is not a one-way process. The assistance of the Contracting States is vital. Firstly, they must ensure that the Court is sufficiently resourced. Secondly, they must ensure that the Convention is applied meaningfully at the domestic level by Convention-sensitive law makers and judges. The provision of effective domestic remedies is of cardinal importance. In addition, remedial measures must be taken in order to address the systemic and structural problems which generate a highly significant number of cases. These cases – the so called clone or repetitive cases oblige the Court to act as a first-instance court given the unavailability of domestic remedies to allow aggrieved individuals to vindicate their Convention rights.

I advert to the Best Practices Resolution and the following statement contained in the Explanatory Report: “ … human rights must be operationalized , namely understood and applied in all  levels and all sectors of public life to have the necessary impact. If not, human rights run the risk of becoming empty words instead of strong and practical guardians of peace and democracy.”

If we want to reduce the volume of traffic to the Strasbourg Court, then that is very sound advice indeed.