Ministers’ Deputies
CM Documents

CM(2009)181 2 December 20091
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1073 Meeting, 9 December 2009
4 Human rights

4.5 Steering Committee for Human Rights (CDDH) –

Opinion on the issues to be covered at the high-level Conference on the future of the European Court of Human Rights (Interlaken, 18-19 February 2010)
(as prepared by the CDDH at its 69th meeting (24-27 November 2009))

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I. INTRODUCTION

1. The Ministers’ Deputies have asked the Steering Committee for Human Rights (CDDH) to prepare an opinion on the issues to be discussed at the High-Level Conference on the Future of the European Court of Human Rights being organised by the Swiss Presidency of the Committee of Ministers at Interlaken, Switzerland on 18-19 February 2010.2 The CDDH notes that it will be the only inter-governmental contribution to preparations for the Interlaken Conference. In order to allow all perspectives to be considered, it urges member states also to take active steps to consult civil society and other Court stake-holders on the issues to be addressed at the Conference.

2. The CDDH views its mandate as requiring it to propose a list of issues for discussion at the Interlaken Conference on the basis of a vision of how the shared responsibilities of those charged by the Convention with protecting human rights – not only the Court, but also the member states, including when sitting on the Committee of Ministers to supervise execution of Court judgments – should better be discharged in 2019 and beyond, in accordance with the principle of subsidiarity. This opinion therefore sets out (i) the background to the current situation and (ii) the CDDH’s medium- and long-term vision for the Convention system, along with short-term steps to improve the situation in the interim.3 When analysing the following proposals, the future accession of the European Union to the Convention must also be borne in mind.

3. It is important that the Interlaken Conference propose ambitious but realistic timeframes for the completion of any subsequent work, to be set by the Committee of Ministers, and that continuous evaluation of the results of measures taken be carried out. The CDDH draws attention to the need to consider these matters in combination with the human and financial resources required for such work, including to commission independent studies and/or obtain detailed information from the Court on relevant issues, as necessary.

II. BACKGROUND

4. The Court has for many years now been faced with constantly accelerating growth in the number of applications, of which there are now over 100,000 pending, and with which it has struggled to cope despite very considerable increases in resources and its own continuing efforts to streamline procedures and increase productivity. The result is that applications to the Court are taking too long to resolve and the Court faces increasing difficulty in fulfilling of its core responsibility to issue clear and coherent judgments and decisions containing authoritative interpretative guidance to the States Parties. If no decisive action is taken to solve the problem, the entire system is in danger of collapsing.

5. Around 90% of new applications are clearly inadmissible. The Court is nevertheless obliged to give a judicial response to every single one of them. Even with the new single judge formation, introduced by Protocol No. 14 and already applied with respect to certain states parties through Protocol No. 14bis and the Madrid Agreement on provisional application of certain provisions of Protocol No. 14, the Court will be able neither to process applications currently pending nor to respond to every new application within a reasonable time.

6. Around 50% of those cases that are admissible are “repetitive applications” raising issues that have already been the subject of Court judgments in the past but which may not yet have been resolved by the respective respondent state. They are often determined by what are little more than summary judgments, simply recalling earlier judgments and awarding just satisfaction. This is neither appropriate for an international human rights tribunal nor consistent with its essential role in interpreting the Convention and ensuring subsidiary protection for violations that have not been remedied at national level.

7. In response to the growing number of pending applications, the Court has considerably increased the rate at which it issues judgments. The increasing complexity of many judgments, notably pilot judgments, requires enhanced dialogue and technical cooperation with national authorities, often encompassing a group of states faced with similar problems. Such developments present new challenges for the Committee of Ministers in discharging its responsibility to supervise the execution of judgments. The Committee now has some 8,600 judgments on its agenda, over 80% of which concern repetitive cases, yet is assisted in its task by only 27 lawyers.

8. This global situation is untenable and requires urgent action, not only to save the Court but also to reinforce the Convention system as a whole – which would have the result of relieving the burden on the Court and enhancing the effectiveness of the protection of individual rights.

III. THE CDDH’S MEDIUM- AND LONG-TERM VISION FOR THE CONVENTION SYSTEM

9. The CDDH remains profoundly attached to the right of individual application to the Court, as contained in Article 34 of the Convention. This should remain the cornerstone of any reform, so that alleged violations that are unresolved at national level can be brought before the Court. Decisions taken at the Interlaken Conference should be consistent with effective maintenance of this right.

10. In order to ensure the long-term effectiveness of the Convention system, the principle of subsidiarity must be made fully operational. This should be the central aim of the Interlaken Conference. It implies a shared responsibility for all those charged with protecting Convention rights.

· It requires national authorities to assume their primary responsibilities under the Convention to provide effective protection for human rights and remedies for any violations, in particular those arising from situations that have already been the subject of repeated judgments of the Court.4
· It also requires the Court to discharge consistently its responsibility to issue clear and coherent judgments and decisions that provide authoritative guidance to national courts and other authorities on interpretation and application of the Convention, whilst acting as a safety net for cases where individual’s rights were not effectively protected at home. The Court should continue to develop the way it implements the principle of subsidiarity at all stages of its consideration of an application.
· Finally, it requires member states to execute the Court’s judgments fully and diligently and the Committee of Ministers to supervise the execution of Court judgments promptly and efficiently.

11. The present situation in many member states means that particular emphasis at European level is still needed on the protection of rights through judicial determination of individual applications to the Court. It is important, however, that the functioning of the Convention contain more incentives for full protection of rights at national level, thereby decreasing the aforementioned need for subsidiary protection by the Court.

12. The achievement of equilibrium between the rates of receipt and disposal of applications by the Court, at the lowest possible level, is also necessary to ensure the long-term effectiveness of the Convention protection system. Such an equilibrium should be pursued by both reducing the number of inadmissible and repetitive applications, including by effective application of the Convention at national level, and increasing the efficiency with which each category is processed by the Court. Whether or not equilibrium can be achieved in the long-term could prove indicative of the sufficiency of current and future reforms, whether concerning the national level or the Court, or suggest an eventual need for yet further reform. The Interlaken Conference should fix the pursuit of such stable equilibrium as one of the goals of the reform process, if possible by 2019.

13. In this respect, whilst entry into force of Protocol No. 14 remains indispensible to securing the Court’s future, it is probably not sufficient. There is an urgent need to build upon Protocol No. 14 with further measures at all levels. As regards the Court’s case-processing capacity, these include exceptional short-term measures for dealing with currently pending cases. The Interlaken Conference should promote such measures.

14. Prompt and effective supervision by the Committee of Ministers of the execution of judgments is important to enhancing the interpretative authority and impact of the Court’s case law. The Court’s authority and the system’s credibility both depend to a large extent on the effectiveness of this process. The Interlaken Conference should therefore consider how to encourage full execution of judgments by respondent states and efficient supervision by the Committee of Ministers.

15. In the longer term, there lies the possibility that the Court might one day develop to have some degree of power to choose from amongst the applications it receives those that would receive judicial determination. The time is not yet ripe, however, to make specific proposals to this end.

16. The shared responsibility to strengthen subsidiarity should be the central, cross-cutting theme for the Interlaken Conference and has been taken as the underlying theme of this opinion. The CDDH thus proposes that the Interlaken Conference should address all aspects of the Convention system, namely implementation at national level, the situation of the Court and execution of judgments and the supervision of execution, with a view to further, detailed work on them being undertaken thereafter.

A. Implementation of the Convention at national level

17. The Interlaken Conference should decide that further action be taken to improve implementation of the Convention at national level in the following areas.

18. Enhancing national authorities’ knowledge and understanding of the Court’s case law, notably through the following measures:

(i) exploring the need to enhance, through legislative and practical measures, the capacity of national legal systems to give effect, as appropriate, to the Court’s case law and improve the interaction between national and European levels;
(ii) recognising the interpretative authority of the Court’s case law as having potential effects on the national legal order of states other than the Respondent in the case;
(iii) ensuring review of implementation of the recommendations to member states adopted by the Committee of Ministers as part of the 2004 reform package.5

19. Expanding the forms of collaboration with the Court, including by:

(i) considering the introduction of a system whereby national courts may apply to the Court for advisory opinions on legal questions relating to the interpretation of the Convention and its Protocols;
(ii) making greater use of third-party interventions.

20. Improving domestic remedies, by:

(i) introducing a general human rights application/ remedy; and/ or
(ii) ensuring a comprehensive system of remedies for violations in all different types of situations.

21. Strengthening the Council of Europe’s accompanying mechanisms, by recommending:

(i) improved targeting and coordination of the activities of existing mechanisms, including the Committee of Ministers, the Venice Commission, the Secretary General’s powers under Article 52 of the Convention, which could be more actively used, and the Commissioner for Human Rights;
(ii) in the light of the potential for enhancing existing mechanisms, consideration of the possible need for a new mechanism to assist member states in better applying the Convention.

B. The situation of the European Court of Human Rights

22. The Interlaken Conference should decide that further action be taken to improve the functioning of the Court in the following areas.

23. Encouraging the Court to increase the clarity and consistency of its case law, notably in relation to:

(i) uniform and rigorous application of the criteria concerning admissibility and the Court’s jurisdiction, in order to ensure legal certainty;
(ii) consistent application and interpretation of substantive Convention provisions;
(iii) giving sufficient legal reasoning and detail in judgments, in particular to allow resolution of underlying systemic problems;
(iv) just satisfaction, at the same time evaluating the extent to which the levels of just satisfaction act as an incentive to applicants.

24. Encouraging the Court to take full account of its subsidiary role in the application of its procedures and interpretation of substantive Convention provisions.

25. Examining the possibility of a simplified procedure for amendment of certain provisions of the Convention relating to the operating procedures of the Court on the basis of a decision of the Committee of Ministers, initially established by way of a Protocol, which may, for example, be achieved through:

(i) a Statute for the Court, established at a legal level between the Convention and the existing Rules of Court; and/ or
(ii) a new provision in the Convention similar to that found in Article 41(d) of the Statute of the Council of Europe setting out a simplified procedure for amendments of certain articles.6

26. Assessing the need for a new mechanism to filter applications, going beyond the single judge procedure, with possible alternatives including:

(i) a new, separate body of judges within the Court, responsible for filtering;
(ii) additional judges appointed to the existing bench;
(iii) the discharge of certain judicial powers by members of the Registry;
(iv) at least in the short-term, until other solutions can be implemented, a rotating pool of judges taken from the existing bench.

27. More effective handling of repetitive cases, through measures such as:

(i) setting out clear and predictable standards for the pilot judgment procedure as regards selection of applications, the procedure to be followed and the treatment of adjourned cases;
(ii) evaluating the effects of application of the pilot judgment and similar procedures;
(iii) considering whether repetitive cases should be handled by a new body, whilst noting that the Committee of Ministers would in many respects not be equipped to take on such a role;

(iv) should it be set up, consider conferring the task on the new, separate body of judges within the Court responsible for filtering (see paragraph 26(i) above).

28. Encouraging measures allowing rapid disposal of certain types of case, such as:

(i) where there has been no friendly settlement, Respondent States making greater use of unilateral declarations, thereby allowing the Court, in view of the concessions or undertakings given by the state, to strike the application out of its list under Article 37(1) of the Convention;
(ii) full effect being given by the Court to the new admissibility criterion contained in Protocol No. 14, once in force;
(iii) in addition to (ii) above, the Court developing its interpretation à droit constant7 of certain procedural provisions of the Convention, for example of Article 37(1)(c) in such a way as to give effect to the rule de minimis non curat praetor.8

29. Consider introducing incentives to reduce the number of clearly inadmissible applications, for example by:

(i) providing objective information to potential applicants on the Convention and the Court’s case law, in particular on the admissibility criteria and application procedures;
(ii) introducing a system of fees for applicants to the Court, without deterring well-founded applications.

30. Measures to maximise the functional capacity of the Court’s judicial and Registry personnel, notably through:

(i) ensuring full satisfaction of the Convention’s criteria for office as a judge of the Court, along with transparent and rigorous selection procedures at national and European levels, so that, as well as knowledge of public international law and the national legal systems and proficiency in at least one official language, the Court’s composition comprises the necessary practical legal experience;
(ii) secondment of national judges and, where appropriate, other high-level independent lawyers to the Registry of the Court, which would also contribute to interaction between the national and European levels.

C. Execution of judgments and supervision of execution

31. The Interlaken Conference should decide whether to undertake a review of the system of execution of Court judgments and its supervision by the Committee of Ministers, including in the following areas:

(i) reflecting on the key question of whether the current system for supervision of execution of judgments is the best possible;
(ii) adapting the Committee of Ministers’ working methods and rules for supervising execution to present-day realities, so as to enable it to focus in plenary on cases requiring its collective involvement;
(iii) assessing the adequacy of resources devoted to the Committee of Ministers’ work on supervising execution in the light of its workload;
(iv) enhancing dialogue and technical cooperation activities between national authorities and the Execution Department in support of the Committee of Ministers’ work;
(v) developing the emerging practice of interaction between the Committee of Ministers and the Court in relation to the pilot judgment procedure;
(vi) considering whether and how to extend the Committee of Ministers’ role to include also supervision of unilateral declarations, notably those containing general measures;
(vii) ensuring full implementation of Committee of Ministers’ Recommendation CM/Rec(2008)2 to member states on efficient domestic capacity for rapid execution of judgments of the Court.

IV. FINAL COMMENTS

32. The CDDH also underlines that work following the Interlaken Conference should be informed by a thorough examination of the results of introduction by the Court of the two new procedures found in Protocol No. 14bis and the Madrid Agreement on provisional application of certain provisions of Protocol No. 14. It expresses the hope that there will be certainty about entry into force of Protocol No. 14 by the time the Interlaken Conference takes place, so that the first effects of the package as a whole can be assessed as part of the post-Interlaken process.

1 This document has been classified restricted until examination by the Committee of Ministers.

2 See doc. CM/Del/Dec(2009)1064/4.3.

3 Certain of the proposals contained in this Opinion derive from the earlier CDDH Activity Report on “Guaranteeing the long-term effectiveness of the control system of the European Convention on Human Rights” (doc. CDDH(2009)007 Addendum I, 30 March 2009), which has not yet been discussed by the Ministers’ Deputies. The CDDH recalls and reiterates those proposals that are not explicitly repeated herein.

4 Notably those concerning excessive length of proceedings.

5 Namely Recommendation No. R(2000)2 on the re-examination or reopening of certain cases at domestic level following judgments of the Court, Recommendation Rec(2002)13 on the publication and dissemination in the member States of the text of the ECHR and of the case-law of the Court, Recommendation Rec(2004)4 on the ECHR in university education and professional training, Recommendation Rec(2004)5 on the verification of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the ECHR and Recommendation Rec(2004)6 on the improvement of domestic remedies.

6 See also Article 26(2) of the Convention on the size of Chambers of the Court, as it would be amended by Article 6 of Protocol No. 14.

7 I.e. without amendment of the Convention.

8 The judge is not concerned by trivial matters.


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