CM(2006)88 10 May 20061
116th Session of the Committee of Ministers
(Strasbourg, 18-19 May 2006) –
Interim report of the Group of Wise Persons
to the Committee of Ministers
Appointment, terms of reference and work of the Group
1. The Heads of State and Government of the Council of Europe member States, meeting in Warsaw on 16 and 17 May 2005, decided in their Action Plan to set up a Group of Wise Persons to consider the issue of the long-term effectiveness of the ECHR control mechanism, including the initial effects of Protocol No. 14 and the other decisions taken in May 2004. They asked them to submit, as soon as possible, proposals going beyond these measures, while preserving the basic philosophy underlying the convention.
2. At their 927th meeting, on 25 May 2005, the Deputies entrusted their Chair, notably in contact with the chairman of the Liaison Committee with the European Court of Human Rights, with carrying out the necessary consultations in order to present at the earliest opportunity proposals regarding the composition of the Group of Wise Persons set up by the Summit to draw up an overall strategy to ensure the long-term effectiveness of the Convention.
3. At their 937th meeting, on 14 September 2005, the Deputies decided that the Group of Wise Persons would comprise the following personalities:
– Mr Rona AYBAY, Turkey,
– Ms Fernanda CONTRI, Italy,
– Mr Marc FISCHBACH, Luxembourg,
– Ms Jutta LIMBACH, Germany,
– Mr Gil Carlos RODRIGUEZ IGLESIAS, Spain,
– Mr Emmanuel ROUCOUNAS, Greece,
– Mr Jacob SÖDERMAN, Finland,
– Ms Hanna SUCHOCKA, Poland,
– Mr Pierre TRUCHE, France,
– Lord WOOLF of BARNES, United Kingdom,
– Mr Veniamin Fedorovich YAKOVLEV, Russia.
4. The Ministers’ Deputies invited the Secretary General of the Council of Europe to provide the Group of Wise Persons with the appropriate assistance and asked the Group to submit an interim report on its work to the 116th session of the Committee of Ministers in May 2006.
5. On 18 October 2005 Mr Rodriguez Iglesias was elected Chair of the Group. On 9 November 2005, the Group appointed Mr Kurt Riechenberg, law clerk at the Court of Justice of the European Communities, as its secretary.
6. After being set up on 18 October 2005, the Group held meetings on 9 November and 7 December 2005 and on 9 January, 6/7 February, 6 March, 30/31 March, 24/25 April and 12 May 2006.
7. The Group was assisted in its work by Mr Patrick Titiun, Deputy Head of the Legal Advice Department, and Ms Susan Bradbury, Administrative Assistant, who were placed at its disposal by the Secretary General of the Council of Europe. The Group invited the Registrar of the European Court of Human Rights to attend its meetings.
8. In the course of its work, the Group has:
– given hearings to Mr Luzius Wildhaber, President of the European Court of Human Rights, and to Mrs Maud de Boer Buquicchio, Deputy Secretary General of the Council of Europe;
– held a meeting with NGOs, namely Amnesty International and the AIRE Centre (at their request);
– held a meeting with members of the Court; at this meeting, the members of the Court reported on their work to implement the four main innovations introduced by Protocol No 14, namely the single judge/rapporteur system, the new competence of committees under Article 28 amended, the new admissibility criterion provided for in Article 35 amended, and the new “admissibility/merits” procedure under Article 29 amended;
– held a meeting with the staff of the Registry, the main focus being on how cases are processed and prepared for hearing in the divisions and how the committees’ decisions are prepared.
9. The Group has also considered a large amount of written material, in particular:
– resolutions and recommendations of the Parliamentary Assembly and the Committee of Ministers;
– documents produced by the Court, in particular the report by its committee on working methods;
– the report drawn up under the authority of Lord Woolf entitled “Review of the working methods of the European Court of Human Rights”.
Purpose of this report
10. The purpose of this interim report is to inform the Committee of Ministers of the progress of the Group’s work and the stage reached in its discussions, in order to elicit reactions to the report. In this connection, it should be stressed that these discussions have not yet resulted in final conclusions and that, consequently, the guidelines set out in this report are of a provisional nature.
The Council of Europe and human rights protection
11. It is important to begin by reiterating the fundamental importance attaching to human rights protection in the Council of Europe framework and the diversity of the means employed to protect them, as it is in this context that the role and long-term effectiveness of the judicial control mechanism must be assessed.
12. The enlargement of the Council of Europe and the accession to the European Convention on Human Rights of the Central and East European democracies contribute to stability in all of Europe. The Convention and the Court have become genuine pillars in the protection of human rights and fundamental freedoms. For its part, the Committee of Ministers plays an important role in monitoring the execution of judgments.
13. Since the Convention forms part of national law under the member States’ legal systems, the remedies available at national level must be effective and well known to the citizens. Indeed, they constitute the first line of defence for the rule of law and human rights. It is for the national courts in the first instance to protect human rights within their domestic legal system and ensure respect for the rights safeguarded by the convention. The principle of subsidiarity underlying this institutional and judicial framework is one of the cornerstones of the human rights protection system in Europe.
14. In addition to this, the Council of Europe has set up many institutions and bodies in the human rights field. These have proved their commitment and effectiveness. Not only the Commissioner for Human Rights but also the European Committee for the Prevention of Torture, the European Commission against Racism and Intolerance, the Advisory Committee on the Framework Convention for the Protection of National Minorities and the European Committee on Social Rights play important complementary roles.
15. Lastly, in many member States, non-judicial institutions such as parliamentary ombudsmen, petition committees and human rights commissions play a significant role in providing information on, and promoting, human rights.
The judicial control mechanism
16. The setting up of a court whose jurisdiction is binding for all the States Parties to the European Convention on Human Rights represents the basic mechanism for supervising compliance by the Contracting Parties with the rights recognised in the Convention.
17. The right of individual application, now enshrined in Articles 34 and 35 of the Convention, is the most distinctive feature of this control mechanism. The Court is the only international court to which any individual, non-governmental organisation or Group of individuals can have access. The right of individual application is today both an essential part of the system and a basic feature of European legal culture.
18. This protection mechanism confers on the Court at one and the same time a role of individual supervision and a “constitutional” mission. The Court’s primary function is to verify the conformity with the Convention of any interference by a State with individual rights and freedoms and find any violation imputable to the respondent State. Its other function leads it to lay down common principles and standards relating to human rights and to determine the minimum level of protection which States must observe.
The explosion in the number of cases
19. The survival of the machinery for judicial protection of human rights and the Court’s ability to cope with its workload are now seriously under threat from an exponential increase in the number of individual applications. This dramatic development jeopardises the proper functioning of the convention’s control system. This trend has been clear since the entry into force of Protocol No 11 and the abolition of the Commission of Human Rights. Furthermore, the number of Council of Europe member States has increased significantly.
20. In this connection, it should be stressed that over 90% of cases brought before the Court are declared inadmissible. At the beginning of 2006, 81,000 cases were pending before the Court and 7,000 cases had been pending for at least 3 years. Of this total, 25,000 individual communications were awaiting “regularisation” as applications. Some of these cases can be pending for a very long time.
21. This situation, which, despite the various measures taken by the Court, is likely to get worse, is extremely serious. If nothing is done to resolve the problem, the system is in danger of collapsing. It is the Group’s responsibility to recommend effective measures to remedy this situation on a permanent basis, thus making it possible to ensure the long-term effectiveness of the control mechanism of the European Convention on Human Rights.
Protocol No 14
22. Protocol No 14 is designed to give the Court the necessary procedural means and flexibility to process all applications within a reasonable time, while enabling it to concentrate on the most important cases. It seeks in particular to reduce the time spent by the Court on manifestly inadmissible and repetitive cases.
23. The changes introduced by Protocol No 14 will no doubt be extremely useful. The Group can only add its voice to those who have already stressed the need for this protocol to enter rapidly into force.
24. It will not be possible to make a final assessment of the effects of the entry into force of Protocol No 14 until it has been applied for a certain time. However, it can already be anticipated that the reforms introduced by it will not be sufficient for the Court to find any lasting solution to its problem of congestion. According to estimates produced within the Court, the increase in productivity resulting from the implementation of this protocol might be between 20 and 25%.
25. The Group regards Protocol No 14 as an established fact in the sense that its recommendations will need to go beyond it. They will need to be more radical in order to ensure that the Court is able to perform its specific functions fully and on a long-term basis.
A Court able to perform its essential functions
26. In accordance with Article 32, paragraph 1 of the Convention, “the jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the convention and the protocols thereto”. The Group believes that the Court should be relieved of a large number of cases which should not “distract” it from its essential role. Manifestly inadmissible or repetitive cases, in particular, should be considered in this connection.
27. It is important, therefore, to set out measures which will enable the Court to concentrate on its function as the custodian of European public order in the human rights field. This would meet the need for institutional effectiveness and thus the Court would retain its status as a high-level European court relieved of a whole body of litigation which hinders it unnecessarily in its task of securing respect for the primacy of human rights. The Group considers that the reforms it recommends should not affect the substance of the right of individual application.
Possible lines of reform
28. With a view to proposing reforms based on the foregoing considerations, the Group has examined a range of measures relating notably, on the one hand, to the functioning of the “central” judicial control system established by the Convention, and on the other, to decentralised actions at the level of the member States.
29. The Group’s aim in exploring these possible lines of reform is to be able to propose measures of different kinds, which, combined, would ensure the proper functioning of the control mechanism in the long term.
30. The measures which the Group is considering concern the following aspects:
1. Making the system more flexible as regards the conditions for reforming it
2. Establishing a new judicial filtering mechanism
3. Extension of the duties of the Commissioner for Human Rights
4. Judgments of principle
5. Strengthening of the pilot judgment procedure
6. Improvement of domestic remedies to provide redress for violations of the reasonable time requirement
7. Forms of co-operation between the European Court of Human Rights and the national courts
8. Decentralised offices performing information and advice functions
9. Translation and dissemination of the Court’s case-law
31. The Group also considered other possible lines of reform which it finally decided not to pursue.
32. Thus, it thought that the setting up of “regional courts of first instance” would entail a risk of diverging case-law and would be costly. An arrangement of this kind would also be likely to raise a large number of procedural issues.
33. The Group also decided not to pursue the idea of giving the Court a discretionary power to decide whether or not to take up cases for examination (a system analogous to the certiorari procedure of the United States Supreme Court). It felt that a power of this kind would be totally alien to the philosophy of the European human rights protection system. It was pointed out that the right of individual application was a key component of the convention system and that the introduction of a mechanism based on the certiorari procedure would be likely to call it into question and thus undermine the philosophy underlying the convention. Furthermore, a greater margin of appreciation would tend to politicise the system as the Court would have to select cases for examination. That might entail the risk of inconsistency, if not arbitrariness. Lastly, the introduction of this mechanism would be perceived as a lowering of human rights protection.
34. The Group believes that consideration should be given to the possibility of introducing greater flexibility into the judicial system of the Convention through an amendment thereto authorising the Committee of Ministers to carry out certain reforms relating to judicial organisation by way of unanimously adopted resolutions without an amendment to the Convention being necessary each time.
35. This method has been used on numerous occasions in the European Communities. One notable example was the setting up of the Court of First Instance. The Treaty of Nice subsequently introduced the possibility for the Council to create “judicial panels to hear and determine at first instance certain classes of action or proceeding brought in specific areas”. It was this means that was employed to set up the new European Union Civil Service Tribunal. In addition, under Article 245, 2nd paragraph, of the Treaty, the provisions of the Statute of the Court of Justice of the European Communities, with the exception of Title I, may also be amended by the Council acting unanimously.
36. The Group considers that such a method could prove effective in the long term as a tool for making the convention system more flexible and capable of adapting to new circumstances. The Group notes, however, that this flexibility could not apply to the substantive rights set forth in the Convention and should be confined to the provisions relating to the Court’s operating procedures, and solely on the Court’s own initiative.
37. The Group is considering how best to ensure effective filtering of the cases brought before the Court.
38. Protocol No 14 opens up significant possibilities in this regard by assigning certain powers to committees of three judges or even single judges. The Court is currently studying ways of implementing these possibilities. In particular, it is considering a system whereby a number of judges might perform these filtering functions on an annual rotating basis.
39. The Group, whose proposals should be aimed at the long term, beyond Protocol No 14, is considering the possibility of recommending the setting up of a judicial filtering body which would be integrated with the Court but separate from it, in order to guarantee, on the one hand, that individual applications result in a judicial, and not an administrative, decision and, on the other, that the Court can be relieved of a large number of cases and focus on its essential role.
40. Such a body, which might be called the “Judicial Committee”, would, in particular, perform functions which, under Protocol No 14, are assigned to committees of three judges and single judges.
41. The aim would be to deal in particular with cases in which an application is inadmissible on formal grounds, owing to a failure to comply with time-limits or to exhaust domestic remedies. Other types of cases should also be considered, such as those where there is a well-established case-law finding no violation of the Convention. The Group is continuing its discussions in order to identify other cases which might, subject to certain conditions, be submitted to this body.
42. The possibility should be envisaged of seconding some of the Registry staff to this body, as this would limit staff costs.
43. The Group considers that the Commissioner for Human Rights should play a more active role in the Convention’s control system, acting either alone or in co-operation with European and national non-judicial bodies. In particular, the Commissioner should respond actively to information resulting from Court decisions finding serious violations of human rights. Close and flexible co-operation should be established with the Court Registry in this connection.
44. Appointed under Resolution (99) 50 of the Committee of Ministers, the Commissioner for Human Rights functions independently and impartially to “identify possible shortcomings in the law and practice of member States concerning the compliance with human rights as embodied in the instruments of the Council of Europe, promote the effective implementation of these standards by member States and assist them, with their agreement, in their efforts to remedy such shortcomings”.
45. Protocol No 14 introduces a provision allowing the Commissioner for Human Rights to submit written observations and take part in hearings before the Court.
46. Under his mandate, the Commissioner for Human Rights facilitates the activities of national ombudsmen and similar institutions. However, these are not always competent in human rights matters. The Committee of Ministers might consider adopting a recommendation with the aim of assigning competence to them in this field.
47. The Commissioner should extend his current co-operation with national and regional ombudsmen and similar institutions in order to form an active network of ombudsmen in future, so as to disseminate appropriate information on human rights and, as far as their competence permits, on alleged violations and abuses.
48. This network of ombudsmen could help to reduce the Court’s workload with the active support of the Commissioner for Human Rights, who could identify a specific problem in a State likely to trigger a large number of applications to the Court and help to find a solution to the problem at national level in conjunction with the national ombudsmen. They could also play a role in informing the public about the right to apply to the Court by distributing application forms and, above all, informing the public about the Court’s mandate and competence and about the admissibility criteria contained in the Convention.
49. His mandate could also be extended to cover co-ordination of the activities of the various Council of Europe bodies competent in human rights matters. He could inform them of human rights violations identified by the Court and of the allegations contained in applications (including those declared inadmissible). These bodies could thus act to resolve the difficulties identified, which would prevent further applications from being submitted. In co-operation with the Court Registry, the Commissioner could encourage each member State to establish the necessary facilities to enable alleged victims of violations of the Convention to reach friendly settlements of their cases through mediation provided by experienced mediators.
50. Under the present system, judgments are given in a particular case and do not apply to other States, even if they are judgments establishing a general principle. However, some problems that give rise to judgments by the Court against a State arise in the same way in other States. Once a judgment has been delivered against a State, this may lead that State to modify its practice, its legislation and its case-law, but that may not affect the other States, despite the fact that they are in the same situation.
51. The Group is considering the possibility of recommending that, in this category of cases, all States Parties to the Convention should be invited to intervene before the Court. A measure of this kind would be likely to enhance the “constitutional” role of the Court’s case-law on questions of principle and its authority erga omnes (in respect of everyone).
52. Among the many different initiatives taken by the Court to speed up processing of the cases brought before it, the Group focused particular attention on the measures to facilitate increased use of the “pilot judgment” procedure. In substance, once the pilot case has been designated as such by the Court, all similar applications against the same State, including those lodged after designation of the pilot case, should be adjourned pending the adoption of general measures at national level to remedy the problem identified by the Court in respect of all the persons concerned.
53. The Group supports this important initiative on the part of the Court. In the light of practical experience, consideration would need to be given in future to the question of whether the existing judicial machinery, including the Court’s rules of procedure, will suffice for this model to be able to produce the desired results or whether a reform of the Convention should be contemplated in this connection. In any event, the Group encourages the Court to use the pilot judgment procedure as far as possible in future.
6. Improvement of domestic remedies to provide redress for violations of the reasonable time requirement
54. The length of proceedings in civil, criminal and administrative cases is one of the main sources of litigation before the Court. Registry statistics show that the relevant cases represent a considerable workload for the Court. It has been estimated that this category of cases accounted for 25% of all judgments delivered in 2005.
55. One of the reasons for the existence of this profusion of cases is the fact that most States do not have domestic procedures for redressing the damage resulting from the length of proceedings. The same question arises with regard to other violations, such as excessive length of detention pending trial, which is prohibited by Article 5, paragraph 3 of the Convention.
56. Several countries have introduced legislative, judicial and other machinery to remedy this type of shortcoming. The purpose of these solutions is to enhance the subsidiary nature of the central control mechanism by giving potential applicants satisfaction at domestic level before they submit an application to the Court. Going beyond Recommendation 2004 (6) of the Committee of Ministers to member States on the improvement of domestic remedies, it would be conceivable, therefore, to draft a convention text which would oblige member States to introduce domestic legal mechanisms to redress the damage resulting from excessive length of judicial proceedings or of detention pending trial.
57. Provided it is effective, the introduction of such a mechanism at domestic level would relieve the Court of a considerable number of cases. Failure to exhaust this remedy would make the application inadmissible.
58. The Group has paid close attention to the question of relations between the Court and the national courts. The latter have responsibility for protecting human rights by upholding the Convention within their sphere of competence.
59. For the Group, the role of the member States’ highest courts in applying the Convention is of paramount importance. It notes with satisfaction that the Court is maintaining and expanding its contacts with the national courts. In this connection, the Council of Europe should continue its activities relating to the training of national judges. In the Group’s view, it would seem appropriate to explore the desirability of enhancing, and indeed institutionalising, these links between judges.
60. In this connection, the introduction of a preliminary ruling mechanism on the model of that existing in the European Union has been discussed. However, the Group reached the conclusion that the EU system is unsuitable for transposition to the Council of Europe.
61. On the other hand, the Group observes that it would be useful to explore the desirability of introducing a system under which the national courts might apply to the Court for consultative opinions on legal questions relating to interpretation of the Convention and the protocols thereto. This procedure should be restricted to supreme courts and it should be pointed out that a mechanism of this kind would always be optional in character. This is an innovation which would foster dialogue between courts and enhance the Court’s “constitutional” role.
62. A way in which it would be possible for national courts to be encouraged to be supportive of the European Court of Human Rights and at the same time the Court relieved of a significant part of its case load would be created if the Court was given the power to remit appropriate applications which it had received which could, at least in part, be more effectively resolved in the domestic courts. Two obvious categories are:
- issues relating to compensation under Article 41. The Court could decide that the case is one in which there should be an award of compensation and the domestic court could decide the amount of compensation.
- cases which are already governed by decisions of principle by the Court.
The fact that a case is remitted would not prejudice the applicant since if the domestic court failed to make an appropriate order, the case should be able to be restored to the Court. A power to remit would be consistent with the principle of subsidiarity.
63. The Group noted with great interest the lessons drawn from the Warsaw “Information Office” project. The Group considers this a very interesting initiative which deserves to be extended.
64. It should be remembered that the Council of Europe has a number of information offices which were set up pursuant to Committee of Ministers Resolution (99) 9.
65. These offices could host one or more lawyers who would do the same kind of work as the lawyer at the Warsaw Information Office. The setting up of these lawyer’s offices within the Council of Europe Information Offices would depend on the number of applications originating from the country concerned.
66. These offices would provide potential applicants with information on admissibility issues. They could familiarise them with the existing domestic remedies and other, non-judicial remedies. They could also advise them on how to complete an application form. These offices would bring citizens closer to the convention mechanism and save them from embarking unnecessarily or prematurely (before exhausting domestic remedies) on proceedings with no prospect of success.
67. These offices would obviously not play a judicial role. However, their assistance to applicants in preparing their applications would facilitate the subsequent work of the Court Registry.
68. Lastly, they would be a source of information on the Convention at national level, alongside those other sources which are ombudsmen and NGOs. Moreover, the Commissioner for Human Rights could help in choosing the locations of lawyer’s offices. In the course of his visits he could assess the functioning of these offices.
69. Still on the subject of information, the Group considers that national judicial and administrative institutions should be able to have an insight into the case-law of the Court in their respective language to help them to identify any judgments which might be relevant to issues under consideration in the institution concerned.
70. In the Group’s view, responsibility for translation, publication and dissemination of case-law lies with the member States and their competent bodies. Each country should make its own arrangements while taking due account of the importance of these texts.
71. On the other hand, it is for the Court to decide, as is already the case, which judgments to publish in full (or in summary form, as the case may be, including judgments on the admissibility of applications) and to ensure a structured presentation of these documents. Regular production of handbooks or other summaries in languages other than the Council of Europe official languages, in hard copy and/or in electronic form, might also constitute a useful means of dissemination.
72. These publications should be distributed as widely as possible, particularly within public institutions such as courts, police bodies and prison administrations, and non-state entities such as bar associations and professional organisations. Law faculties should also figure among the most important recipients of these publications.
73. In this connection, the Group emphasises the importance of implementing Committee of Ministers Recommendation (2002) 13 and Resolution (2002) 58 of 18 December 2002, on the publication and dissemination in the member States of the text of the Convention and the case-law of the European Court of Human Rights.
74. Among the subjects not yet discussed by the Group, one should refer to the following points, which warrant particular attention:
– institutional issues;
– substantive and procedural rules governing the award of “just satisfaction”;
– alternative methods of resolving conflicts brought before the Court.
Note 1 This document has been classified restricted at the date of issue. It was declassified at the 116th Session of the Committee of Ministers (19 May 2006).