An additional part or version of this document is available.

CM(2009)51E  / 27 May 2009 

Ministers’ Deputies
CM Documents

CM(2009)51 add prov 31 March 20091
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1054 Meeting, 15-16 April 2009
4 Human Rights


4.3 Steering Committee for Human Rights (CDDH) –

Guaranteeing the long-term effectiveness of the control system of the European Convention on Human Rights
ii. CDDH final opinion on putting into practice certain procedures envisaged to increase the Court’s case-processing capacity
ii. Activity report “Guaranteeing the long-term effectiveness of the control system of the European Convention on Human Rights”

Item to be prepared by the GR-H at its meeting of 2 and 14 April 2009
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Summary

The present document contains both:

(i) the Final Opinion of the CDDH on the question of putting into practice certain procedures envisaged to increase the Court’s case-processing capacity, and

(ii) its Activity Report on guaranteeing the long-term effectiveness of the control system of the European Convention on Human Rights.

The former was prepared in response to the Ministers’ Deputies decision of 19 November 2008 and follows the CDDH’s Preliminary Opinion on the same question, which was transmitted to the Ministers’ Deputies on 1 December 2008, as requested.

The latter was prepared under the terms of reference of the Reflection Group of the CDDH (DH-S-GDR) and in response to the subsequent Ministers’ Deputies’ decision on follow-up to the Stockholm Colloquy (9-10 June 2008).

CDDH final opinion on putting into practice certain procedures envisaged to increase the Court’s case-processing capacity 2

I. Introduction

1. The present document constitutes the CDDH’s final opinion on the question of the advisability and modalities of inviting the Court to put into practice certain procedures which are already envisaged to increase the Court’s case-processing capacity, in particular the new single-judge and committee procedures, which the Ministers’ Deputies requested by 31 March 2009.3

2. The two procedures mentioned are also contained in provisions of Protocol No. 14 to the European Convention on Human Rights (“the Convention”). Protocol No. 14, however, requires ratification by all States parties to the European Convention on Human Rights (“the Convention”) before it can enter into force. One of the 47 states parties to the Convention has yet to ratify the Protocol, with the result that it has not come into force. The prompt ratification of Protocol No. 14 by the 47th State party to the Convention and its consequential entry into force continue to be of the utmost priority, as noted also by the Committee of Legal Advisers on Public International Law (CAHDI) in its own opinion.4

3. The CDDH is well aware of the importance of respecting the principle of legality in exploring the various possible modalities, all the more so in that they relate to the control system of the Convention. It is essential that any action in this area have a sound basis in public international law. The CDDH therefore welcomes and broadly concurs with the CAHDI’s opinion on the public international law aspects of the matter, which has been fully taken into account and of which various elements are referred to herein.

4. In responding to the Deputies’ request, the CDDH will first address the question of the advisability of putting the new measures into practice, followed by the question of modalities.

II. Advisability

5. The CDDH recalls its earlier comments on the advisability of putting certain procedures into practice.5 It also notes more recent figures emerging from the Court, which show that in 2008, its annual deficit – i.e. the increase in the number of pending cases – was 17,806 cases, compared with 12,866 in 2007 and 9,678 in 2006. At the end of February 2009, the provisional total figure for the number of pending cases was 102,720.

6. The CDDH therefore strongly reaffirms its earlier conclusions: it is obvious that significant steps must be taken at the earliest possible opportunity to enable the Court to respond effectively to its caseload; the two new procedures would constitute appropriate steps. It notes that the CAHDI also underlined “the seriousness of the threat to the entire control mechanism of the Convention and the need to respond to it.”6

7. In its Preliminary Opinion, the CDDH raised the question of whether to put into practice also the new admissibility criterion contained in Article 12 of Protocol No. 14. The CDDH now concludes that it would be preferable at this stage to limit the exercise to the two new measures explicitly mentioned in the Ministers’ Deputies decision, namely the new single-judge and committee procedures, which are purely procedural provisions that do not affect either the substantial rights contained in the Convention (including the right of individual application to the Court), States parties’ obligations under the Convention or the jurisdiction of the Court. The CDDH also notes that the CAHDI opinion presupposes that only these two procedures would be put into practice.

8. Evidently, it would be preferable to arrive at a solution applicable to all 47 states, if possible. Depending on the eventual modality that might be chosen for putting the two procedures into practice, however, the result may be that the new procedures would apply only in respect of certain States parties to the Convention. In this connection, it should be noted that the Registry of the Court has indicated that there would be no technical obstacles to putting these procedures into practice with respect only to some States parties to the Convention. For the others, the current procedures would remain unchanged.

9. Nevertheless, the CDDH is firmly of the view that the necessity to respond to the threat to the Convention’s control mechanism as a whole – the cornerstone of the wider European human rights protection system and of fundamental importance to the activities of the Council of Europe as a whole – is of overriding importance. It recalls that Protocol No. 9 to the Convention is a clear legal precedent for having applications against different states being subject to different procedures.7

III. Modalities

10. In its Preliminary Opinion, the CDDH made reference to six possible modalities:

i. Provisional application of Protocol 14;

ii. Action by the Committee of Ministers under the Statute of the Council of Europe;

iii. Unilateral declarations by States parties that ratified Protocol 14;

iv. Interpretation of the Convention in the light of its object and purpose, the current situation of the Court and adoption of Protocol 14 by the Committee of Ministers and its ratification by 46 of the 47 States parties to the Convention;

v. A new Protocol including some or all of the provisions of Protocol 14 but not requiring ratification by all States parties to the Convention for entry into force;

vi. A combination of possible options.

11. The CDDH will only address in detail those options that are considered compatible with public international law. As regards other options, the CDDH concludes that it has not been established that they offer a sufficiently sound basis in public international law to serve as modalities for putting the two procedures into practice and should not therefore be retained.8

Best solution – entry into force of Protocol No. 14 following ratification by the 47th state

12. As noted at paragraph 2 above, prompt ratification of Protocol No. 14 by the 47th State party to the Convention, correctly described by the CAHDI as the “fastest, simplest way of putting [its provisions] into practice,” 9 remains by far the best solution. In accordance with its Article 19, this would result in the entire Protocol coming into force between three and four months later, thus greatly reducing any delay; would present no complications under public international law; would avoid any difficulties under the national constitutional law of other States parties that have already ratified the Protocol; and would avoid any risk of the Court having to operate two different sets of procedures for two sets of states. The CDDH notes that the CAHDI opinion refers to the possibility of making interpretative declarations or reservations at the time of ratification, insofar as compatible with the pertinent norms of international law and the conditions set out in Article 57 of the Convention.10

Option 1 – provisional application of Protocol 14

13. The CDDH takes note of the CAHDI’s conclusion that provisional application of certain provisions of Protocol No. 14, as described below, would be “fully compatible with the governing principles of public international law.”11 Taking the relevant elements of the CAHDI opinion into account, the situation can be summarised as follows:

i. Protocol No. 14 itself being silent on the matter, the provisional application of certain of its provisions must have its basis in an agreement contained in a separate instrument.12

ii. Since provisional application of Protocol No. 14 would ultimately affect the Convention, all 47 States parties to the Convention need to agree on provisional application.13

iii. The states may choose to agree on provisional application within the Committee of Ministers, which will then act as a forum of the States parties to the Convention, rather than as a statutory organ of the Council of Europe.14
iv. Agreement should be reached by consensus, i.e. absence of disagreement by any state.15 This does not mean that adoption of the agreement would automatically result in provisional application in respect of all participating states (see further at sub-paragraph x. below).
v. The agreement should specify the provisions of Protocol No. 14 to which it applies. Clearly this includes Articles 4 and 6-9, insofar as they relate to the new single-judge formation and new competence for three-judge committees; it may also require consequential reference to other provisions, notably Articles 14 and 15.
vi. It would be preferable to specify the date from which the agreement should be applicable and/ or the “critical mass” of states whose acceptance should be required before the agreement becomes applicable.16 The CDDH took note of the views expressed on this subject by the Registrar of the Court, who stated that there would be no obstacle in practice for the Court to start applying the procedures in relation to even a single state. However, it would be appropriate for there to be a minimum number of states before the procedure started to apply. (See further at paragraph 22 below).
vii. The agreement should also stipulate whether its provisions would apply immediately to applications already pending before the Court.17The CDDH concludes that they should thus apply, noting that this would be the case were Protocol No. 14 to come into force.18
viii. The agreement should also provide that, should an application be brought against several states not all of which had accepted provisional application, the application should be dealt with under the Convention as it stands at present.19
ix. The agreement may expressly lay down the conditions of its termination. The entry into force of Protocol No. 14 should logically bring provisional application to an end.20
x. An additional mechanism of acceptance by individual states should be envisaged, following which the agreement on provisional application would have full effect in respect of states having thus expressed their acceptance.21 Applications brought in respect of states not having expressed their acceptance would continue to be dealt with under the Convention as it stands.

14. The CDDH is aware that the national law of most states may require parliamentary approval before they would be able to express their acceptance of provisional application. It concurs with and takes heart from the CAHDI’s statement that “the problematic aspects of [this issue are] lessened by the fact that nearly all states have ratified Protocol 14 and that the state which has not yet done so does not, in principle, seem to present any technical obstacles on this issue.”22 The CDDH also notes that the process of preparing and adopting the instrument containing the agreement of the parties should be a relatively straightforward matter. (The CDDH noted that the Secretariat had prepared an illustrative text for such an agreement, which has not been examined by the CDDH at this stage.)

Option 2 – a new Protocol

15. Another possibility for putting the two procedures into practice would be a new protocol (“Protocol No. 14bis”), including the two new procedures and other consequentially necessary provisions. It should also include a provision on entry into force not requiring the ratification of all States parties to the Convention. This latter provision would be intended to allow the two procedures to be put into practice as quickly as possible under this option. The protocol would also contain a provision stipulating that it would

cease to be in force once Protocol No. 14 enters into force. Whilst the CDDH considers it preferable that Protocol No. 14bis be adopted by the Committee of Ministers by consensus, it acknowledges that it could be adopted in accordance with the standard procedure.23 The CAHDI has concluded that this option would also be “fully compatible with the governing principles of public international law.”24

16. Unlike the CAHDI, the CDDH does not consider it necessary to include in Protocol No. 14bis a provision on its provisional application, on the basis that only a very limited number of states’ expressions of consent to be bound would be required for its entry into force.25

17. The question of “critical mass” (see paragraph 13(vi) above) is relevant also to entry into force or provisional application of a Protocol No. 14bis. The CDDH took note of the views expressed on this subject by the Registrar of the Court (see also at paragraph 13(vi) above): for Protocol No. 14bis, however, it might be preferable to have a minimum number of, for example, 10, as was the case for Protocol No. 9. (See further at paragraph 22 below.)

18. For most states, a Protocol 14bis would involve going through a ratification procedure involving parliamentary approval.26 Although past experience has shown that this may be a lengthy and uncertain process, it must be borne in mind that this particular protocol would be limited to two new judicial procedures, affecting neither the substantive rights and freedoms (including the right of individual application), the obligations of the States parties nor the competence or jurisdiction of the Court, and which have already been negotiated and agreed to by all States Party to the Convention and the original instrument containing them ratified by 46. It would thus be reasonable to expect that the process of drafting and adoption could be completed very rapidly, with subsequent entry into force/ provisional application for many if not most states being possible within a relatively short period. (The CDDH noted that the Secretariat had prepared an illustrative text for such a Protocol No. 14bis, which has not been examined by the CDDH at this stage.)

Option 3 – pursuing Options 1 and 2 in parallel

19. It would also be possible to pursue Options 1 and 2 in parallel.27 Such an approach does not appear to raise any additional issues under public international law, since the two options would be pursued independently of one another and the basic requirements of each would thus remain unchanged.

IV. General considerations

20. The CDDH noted that speed should be the most important factor in assessing which of the three options could eventually be preferred, pending entry into force of Protocol No. 14, given that each has a sufficiently sound basis in public international law. Until the relevant body is able finally to decide on the preferred option, the CDDH considers that all three should remain open for consideration on an equal footing.

21. A preliminary review of the situation under the national laws of 40 states that provided information indicated the following:

i. 11 states (and perhaps three others) could accept that an agreement on provisional application of certain provisions of Protocol No. 14 be applied in respect of them without first obtaining parliamentary approval. Of those that indicated that parliamentary approval would be necessary, four states suggested that it could be obtained either “rather quickly,” within a “few months” or within “4-6 months”.

ii. Provisional application of Protocol No. 14bis would be possible for five states (and perhaps one more) without first obtaining parliamentary approval. Of those that indicated that parliamentary approval would be necessary, six states suggested that it could be obtained either “rather quickly,” within a “few” or “some” months or within six months.

iii. The overwhelming majority of states would require a parliamentary procedure before they could express their consent to be bound by Protocol No. 14bis; in most cases, this would be likely to take longer than the parliamentary procedure required for provisional application.

22. The CDDH noted the following considerations relevant to the question of “critical mass,” i.e. the number of states that should be required before the two procedures would be put into practice.

i. A requirement of a single country (as mentioned by the Registrar) would have the advantage of introducing the two procedures as quickly as possible.

ii. A requirement of two countries would represent a minimum figure relevant in the context of an international agreement.

iii. A requirement of three countries would represent a minimum figure relevant in the context of a multilateral agreement.

iv. A requirement of ten countries would correspond to the minimum number of ratifications required by Protocol No. 9. Should this number of ratifications be required, it may be necessary to reconsider the question of provisional application of Protocol No. 14bis.

V. Conclusions

23. On the basis of the foregoing, the opinion of the CDDH on the advisability and possible modalities of putting into practice certain procedures already envisaged to increase the Court’s case-processing capacity can be summarised as follows. It should be noted that these conclusions are entirely consistent with those of the CAHDI.28

24. It is highly advisable – indeed, absolutely necessary – to take action to increase the Court’s case-processing capacity.

25. The best solution remains prompt ratification of Protocol No. 14 by the 47th state and its consequential entry into force.

26. Pending the entry into force of Protocol No. 14, action should at this stage be limited to introducing the new single-judge formation and the new competence of three-judge committees.

27. Two alternative modalities for achieving this result can be identified that would be fully compatible with the principles of public international law:

i. Provisional application of relevant provisions of Protocol No. 14, on the basis of an agreement reached by consensus (i.e. absence of disagreement) amongst the States parties to the Convention; or

ii. Adoption of a new Protocol, No. 14bis, by the Committee of Ministers, preferably by consensus but otherwise on the basis of the usual qualified majority vote.

28. It would also be possible to pursue the two options outlined above in parallel.

29. Finally, the CDDH expresses its willingness and availability to assist the Committee of Ministers with any further steps that may be taken to put the two procedures into practice.

* * * * *

CDDH activity report “Guaranteeing the long-term effectiveness of the control system of the European Convention on Human Rights”29

I. Introduction

1. In July 2007, the Ministers’ Deputies asked the Steering Committee for Human Rights (CDDH) to examine in depth the concrete follow-up that could be given to the recommendations contained in the Report of the Group of Wise Persons to the Committee of Ministers, taking into account the various contributions thereto and events thereafter, along with Lord Woolf’s report on the Court’s working methods and earlier initiatives. The CDDH therefore established a Reflection Group (DH-S-GDR) in November 2007, whose ad hoc terms of reference appear in document CM/Del/Dec(2008)1017/4.1/appendix 5 and which met a total of five times.30 In October 2008, the Ministers’ Deputies supplemented the terms of reference by asking the CDDH to give priority attention to certain matters identified at the Stockholm Colloquy (9-10 June 2008) (see CM/Del/Dec(2008)1039/4.6).

2. Mr Roeland BÖCKER (the Netherlands) was elected Chairperson and Mrs Anne-Françoise TISSIER (France) Vice-Chair. The list of participants at the various meetings is available from the secretariat of the CDDH (document CDDH(2009)007 Addendum I). In the course of its work, the Group considered a wide range of detailed proposals covering many aspects of the Convention system at national and European level, with the benefit of contributions from representatives of the Registry of the European Court of Human Rights, the Office of the Council of Europe Commissioner for Human Rights and the European Commission for Democracy through Law (see Appendix I for a list of the main documents). During its final meeting, it also held a half-day hearing with representatives of non-governmental organisations and the European Group of National Human Rights Institutions; the agenda of and list of participants at this hearing available from the CDDH secretariat.

3. The present report constitutes the activity report requested by the Committee of Ministers for 30 April 2009. Since discussion of certain proposals not requiring amendment of the Convention, as well as those requiring amendment, continued after the CDDH adopted the Interim Report at its 66th meeting (25-28 March 2008), the present Activity Report represents an overview of activities and conclusions on both sets of proposals throughout its mandate.

4. It should be noted that the non-entry into force of Protocol No. 14 to the Convention has had a serious impact on the work. As a result, it has been impossible to “draw up an evaluation of the first effects produced by Protocol No. 14 during the first year following its entry into force,” as required by the terms of reference. Furthermore, the Group of Wise Persons’ proposals presupposed that Protocol No. 14 would be in force. Consideration of these proposals, as well as others that would require amendment of the Convention was thus made difficult, since the non-entry into force of Protocol No. 14 meant that the context within which such proposals would function was uncertain and the effects of already envisaged intermediary steps were unknown.

5. On the other hand, the Group contributed to the work of the CDDH on the questions of whether and how to put into practice certain procedures foreseen to increase the Court’s case-processing capacity. The Group’s discussions on Protocol No. 14, including its contribution to the afore-mentioned work of the CDDH, are reflected in the reports of its 3rd, 4th and 5th meetings.

6. It should be recognised that the suggestions contained at the end of this report may not suffice to arrest, let alone reverse, the continuing deterioration in the situation of the Court.

II. Proposals not requiring amendment of the Convention

Filtering of applications

7. The question of how to deal with (i) the very high proportion of inadmissible cases and (ii) the high proportion of admissible cases that raise issues on which the Court’s case-law is clear is perhaps the greatest challenge facing the Court. The measures foreseen in Protocol No. 14 represent an essential first step in responding to this challenge. Nevertheless, further reflection is needed to identify measures that would be effective in both the immediate term, before the relevant measures foreseen by Protocol No. 14 are in effect, and, looking beyond Protocol No. 14, the long term.

8. Various possibilities exist for reforming, without amendment of the Convention, the way the Court deals with applications. One example would be creation of a pool of judges within the existing Court devoted to filtering, intended to deal with inadmissible cases under strict management procedures. Even if this work might lack the intellectual stimulation of that involved in deliberating on full judgments – which could be alleviated by a system of rotation – it might be at least a useful short-term palliative, in particular allowing the Court to address the backlog as efficiently as possible.

Improving domestic remedies

9. The Group of Wise Persons had proposed that “Domestic remedies for redressing violations of the rights secured by the Convention should be improved. The length of proceedings in civil, criminal and administrative cases, which is one of the main sources of litigation before the Court, highlights the need for such an improvement…”31 To this end, they proposed that a convention text be drafted, based largely on the principles set out by the Court in the Grand Chamber judgment in the case of Scordino v. Italy (No. 1).32

10. The Ministers’ Deputies, in their decision on follow-up to the Stockholm Colloquy, called on the CDDH to give priority attention to and report on “the possibility of drawing up more specific non-binding instruments on effective domestic remedies regarding in particular excessive length of proceedings, including practical steps to prevent violations.”

11. As the Deputies’ decision suggests, it would indeed be more appropriate to address the issue by means of a non-binding instrument, not least because this would allow for greater flexibility, should revision prove necessary, than would be the case for a convention text. Given the existence of Article 13 and the Court’s dynamic interpretation thereof in its case-law, there is no apparent need for an additional convention text.

12. The proposal to take further steps to improve domestic remedies reflects the subsidiary nature of the Court. Effective domestic remedies are particularly important with respect to length of judicial proceedings, since cases raising these issues represent a very large part of the Court’s caseload. The Court’s case-law on this aspect of the problem is sufficiently developed to form a solid basis for further work, as a first step in implementing the Deputies’ decision. The report of the European Commission for Democracy through Law on the effectiveness of national remedies in respect of excessive length of proceedings could also provide inspiration, as could relevant activities of the European Commission for the Efficiency of Justice. The role of national human rights institutions, Ombudspersons, non-governmental organisations and other civil society actors in identifying shortcomings and helping to establish and improve domestic remedies should also be taken into account.

13. The existence of effective remedies, whether acceleratory or compensatory, does not relieve the state of the obligation to take measures addressing the root causes of excessive length of proceedings, which may involve practices as much as legislative deficiencies.

14. Work should begin on a non-binding Committee of Ministers’ instrument on domestic remedies for excessive length of proceedings. So as to be of maximum practical value to national authorities when introducing or improving such remedies, it should be short and accompanied by annexed “guidelines” or a “guide to best practice”. Further work could take as its starting point the Secretariat background documents considered by the Reflection Group.33 Work should be undertaken in liaison with other Council of Europe bodies that have been involved on the issue.

Pilot judgment procedure

15. The Group of Wise Persons had encouraged the Court “to make the fullest possible use of the ‘pilot judgment’ procedure. In the light of practical experience, consideration would have 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.”34

16. The pilot judgment procedure is a very useful and flexible tool, or set of tools, allowing the Court to resolve with a single judgment a large number of applications that would be likely, if submitted, to prove admissible and even well-founded, thereby stemming the flow of future “clone-cases” and thus reducing its net workload over time. The Court should be encouraged to make full use of it in all appropriate categories of case.35 At present, it remains under development within the Court and is not yet susceptible to formal definition. In order to dispel uncertainty and possible reticence on the part of both states and other interested parties, therefore, it would be useful if the Court could explain what the procedure involves, with the eventual goal of issuing applicable rules.

17. The potential disadvantage, however, is that other applications are delayed and the applicants may eventually find themselves again involved in lengthy and uncertain domestic proceedings. To avoid this eventuality, it is essential to ensure prompt and effective implementation of the general measures identified in the pilot judgment; this helps avoid applicants whose cases have been frozen from being forced to request the Court to reconsider their cases in Strasbourg.

18. It is also important that the Council of Europe provide appropriate technical and cooperation assistance to member states in implementing the necessary general measures identified in a pilot judgment and that the necessary resources be made available for this purpose. As mentioned at the Stockholm Colloquy, the role of the Committee of Ministers in ensuring enforcement and implementation of judgments relating to systemic problems should also be strengthened.

19. Whilst there is not yet a need for formalisation of the pilot judgment procedure at inter-governmental level, the forthcoming seminar on the pilot judgment procedure (Warsaw, 14-15 May 2009) will represent an important opportunity to study the issue further. One possible outcome of this seminar could be preparation of a manual whereby states would share their various experiences of the pilot judgment procedure. Whilst this would in no way be binding on the Court’s internal administration of a case, it would allow states and applicants better to understand and prepare for what may be required of them.

Unilateral declarations

20. Unilateral declarations by respondent states, allowing the Court to strike certain cases out of its list, could, in certain circumstances, usefully contribute to decreasing the Court’s caseload, in particular where it was not possible to reach a friendly settlement.

21. Where such unilateral declarations are made in connection with repetitive cases, it may be important to ensure that appropriate general measures are or have been taken in order to help stem the flow of such cases in future and thereby maximise the positive effect on the Court’s workload. This could be a relevant consideration for the Court in reaching its decision to strike the case out of its list. Further thought may be required on the question of whether and how to supervise the execution of general measures proposed in such circumstances, bearing in mind that the Court may always restore a case to its list under Article 37(2).

Applications and admissibility

22. Lord Woolf, in his “Review of the working methods of the European Court of Human Rights,” stated that “The Court should redefine what constitutes an application. It should only deal with properly completed application forms which contain all the information required for the Court to process the application. This would simplify the task of the Registry, as it would not have to register and store letters from potential applicants. It would also reduce the total number of applications dealt with by the Court, and would also make the processing of applications much simpler.”36

23. Since Lord Woolf’s review, the Court has revised its practice so that an applicant who does not include a completed form in their initial correspondence with the Court will receive a letter from the Registry directing them to fill out and return the form within a period of 8 weeks. Failure to do so means that their first letter will not interrupt the running of the six-month time limit. This more rigorous practice is to be supported and encouraged.

Developing the Court’s case-law à droit constant

24. As the President of the Court has noted, the Court could itself contribute to relieving its own situation by developing its interpretation of certain articles of the Convention relating to procedure. For example, Article 37(1)(c), which deals with the circumstances in which the Court can strike cases out of its list, could be interpreted in such a way as to give effect to the rule de minimis non curat praetor, subject to the safeguard in the second part of Article 37(1).

Secondment of national judges to the Registry of the Court

25. The secondment of national judges to the Registry of the Court could be beneficial both to the Court and to domestic legal systems by improving mutual understanding. It would thus respond to the need for enhancing national judges’ knowledge of Convention issues. The fact that an experienced national judge could work for a certain period at the Registry also has the potential to reinforce the operational efficiency of the latter. The secondment of national judges, as well as of other high-level independent lawyers, where appropriate, should therefore be encouraged, notably by simplifying the administrative procedures at national level.

Enhancing States parties’ understanding and application of the general principles of the Court’s case-law contained in judgments of principle

26. The Ministers’ Deputies, in their decision on follow-up to the Stockholm Colloquy, called on the CDDH to give priority attention to and report on “ways of raising states’ awareness of judgments relevant to all Council of Europe member states, including through third-party interventions, and assisting states where necessary to take account of the relevant principles in their domestic law in order to avoid violations of the Convention”.

27. It may be beneficial for greater use to be made of third party interventions by states as a means of assisting them better to understand and apply the general principles of the Court’s case-law, by involving them in litigation on specific legal issues. This may allow them to identify and correct or remedy situations that could lead to successful applications being made against them before the Court, thereby reinforcing the subsidiary character of the system and reducing the Court’s future work-load. Third party interventions can also help the Court in cases giving rise to judgments of principle, by providing information on the legal and factual situation in other states. This could contribute to the principles found in Court judgments being more frequently applied in States parties other than the respondent, thereby enhancing the authority and effect of the Court’s judgments and helping to remedy similar problems at national level.

28. The Convention and the Rules of Court already set out the legal basis on which states may make third-party interventions. What is needed are practical measures to increase and facilitate the use of such interventions. States should investigate and pursue means for sharing information on communicated cases amongst themselves, with a view to identifying those cases suitable to third party interventions systematically and at the earliest possible stage. To this end, a “network of Agents” should be established, supported by an on-line discussion forum.

29. Third party interventions by national human rights institutions, non-governmental organisations and other civil society actors also play an important part in the Convention system. In order to ensure that such bodies are able to fulfil this role, they must be given an effective opportunity to request leave.

30. To this end, the Court should be encouraged to take appropriate practical steps to promote greater use of third party interventions, notably by taking a more pro-active approach to identifying suitable cases and inviting third party interventions and by exercising more flexibly the discretion to extend the time limits. In addition, the Court should be encouraged to issue prompt press releases whenever it invites or grants leave to make a third party intervention or a case has been identified as likely to lead to a judgment of principle.

Provision of information to potential applicants to the Court

31. The representative of the Registry of the Court provided information concerning the Warsaw pilot project.37 Devised in the context of the “upstream” problem of the large number of applications from Poland with no prospects of success, this project clearly responded to a need for information at national level among potential applicants, but also current applicants and those whose applications had been found inadmissible, as well as judges, lawyers, students and non-governmental organisations. The Court’s conclusion was that the project achieved several worthwhile aims. It was also beneficial in reducing individuals’ need to approach the Registry or the Polish agent for information.

32. The results of the project justify further investigation of the issue of provision of information to potential applicants. They also support the argument for provision of such information by other actors. Promotion of such activities would complement other awareness-raising activities, including notably those on publication and dissemination of the Convention and the Court’s case-law and on the Convention in university education and professional training.

33. The Warsaw pilot project should be continued and consideration should be given to providing similar services in other Council of Europe information offices, operating under the auspices of the relevant Council of Europe departments. Further consideration should be given to the circumstances in which information is provided on the Convention and the Court, in particular the admissibility criteria and application procedures, to potential applicants by other actors, notably national human rights institutions, non-governmental organisations and other civil society actors.

Publication and dissemination of the Convention and the Court’s case-law

34. The Group of Wise Persons had stated that “The dissemination of the Court’s case-law and recognition of its authority above and beyond the judgment’s binding effect on the parties would no doubt be important elements in ensuring the effectiveness of the Convention’s judicial control mechanism. The Group recommends that judgments of principle and judgments that the Court considers particularly important be more widely disseminated in line with the recommendations of the Committee of Ministers.”38

35. The widest possible publication and dissemination of the Convention and the Court’s case-law, including on awards of just satisfaction, is of vital importance in particular for increasing national authorities’ awareness of applicable standards, thereby reinforcing the subsidiary character of the Convention system. It may also contribute to applicants and their legal representatives having more realistic expectations of the outcomes of their cases, thereby discouraging cases with no prospects of success and encouraging friendly settlements on the basis of appropriate offers by respondent states.

36. The CDDH has previously noted that there will be a need to come back to the national aspect of the reform.39 Committee of Ministers’ Recommendation Rec(2002)13 to member states on the publication and dissemination in the member states of the text of the European Convention on Human Rights and of the case-law of the European Court of Human Rights was not included in the previous review of the three “priority” recommendations40 but could be included in any future exercise, which should take into account related activities elsewhere in the organisation and at national level.

37. The Court should be invited to publish, including on its web-site, up-to-date information on its case-law on admissibility, with translations into non-official languages. Particular consideration should be given to translation into the languages of those countries for which the application form may be completed on-line and of those with the largest numbers of applications.

Role of the Council of Europe Commissioner for Human Rights

38. Following the Report of the Group of Wise Persons, the importance of the Commissioner’s cooperation with Ombudsmen and national human rights institutions, notably via the network of contact persons within the offices of these structures established by the Commissioner, should be underlined. In particular, this cooperation has shown potential to disseminate appropriate information on human rights, assist in ensuring full and prompt execution of judgments of the Court and act as a preventive mechanism.

Just satisfaction

39. The Court should be encouraged to explain further the criteria by which it systematically calculates awards of just satisfaction; and then to proceed with the development of the HUDOC system so as to allow analysis of patterns in the Court’s awards of just satisfaction. In particular, this can help in ensuring realistic expectations on the part of applicants and their legal representatives prior to application and can assist all parties during any later negotiations with a view to a friendly settlement and, in certain cases, subsequent unilateral declarations.

III. Proposals requiring amendment of the Convention

Filtering of applications

40. The Group of Wise Persons had concluded that “A judicial filtering body should be set up which would be attached to, but separate from, the Court, in order to guarantee, on the one hand, that individual applications result in a judicial decision and, on the other, that the Court can be relieved of a large number of cases and focus on its essential role.”41

41. At this stage, however, it is clear that certain results implied by the Group of Wise Persons’ proposal, such as that creation of the “judicial committee” be followed by a reduction in the number of judges on the “senior” bench, are unrealistic. It is nevertheless an interesting proposal which could contribute to a (much) more effective treatment of applications and one that should be examined further, including its budgetary implications.

Advisory opinions

42. The Group of Wise Persons had considered that “it would be useful to introduce a system under which national courts could apply to the Court for advisory opinions on legal questions relating to the interpretation of the Convention and the protocols thereto, in order to foster dialogue between courts and enhance the Court’s “constitutional” role. Requests for an opinion, which would be submitted only by constitutional courts or courts of last instance, would always be optional and the opinions given by the Court would not be binding.”42 This issue received some further support at the Stockholm Colloquy. Such a system could generate additional work. On the other hand, it could help decrease the Court’s caseload by ensuring resolution of systemic problems at national level, depending on how it operated.

43. Although the effects of this proposal are uncertain, the possibility of extending the Court’s competence to give advisory opinions merits further consideration. The Group of Wise Persons’ proposal could be further refined so that the Court would only give advisory opinions on cases arising from situations involving systemic problems, thereby potentially achieving effects similar to those of the pilot judgment procedure and increasing the possibility of achieving a net decrease in the Court’s caseload. Other questions – such as whether the right to request an advisory opinion should be limited to national courts of last instance; whether the Court should be obliged to respond positively to requests; whether applications to the Court should be considered inadmissible when the domestic proceedings had reflected an advisory opinion; whether parties to the domestic proceedings should have the right to intervene as third parties during advisory opinion proceedings; or whether advisory opinions should be binding on the courts requesting them – need not necessarily receive the same answers as those (if any) given by the Group of Wise Persons and should therefore remain open.

44. It might be appropriate to consider the question of advisory opinions in the wider context of general reform of the supervisory mechanism, for instance in connection with work on a possible Statute for the Court.

Statute for the Court

45. The Group of Wise Persons had suggested a need for “greater flexibility of the procedure for reforming the judicial machinery.” Its proposal was to create a Statute for the Court in an instrument at a legal level between the Convention, a treaty whose amendment is subject to the normal rules of public international law, and the Rules of Court, which can be amended by the Court itself. The Statute, “whose content would need to be defined,” would include “provisions relating to the operating procedures of the Court. The provisions of this statute could be amended by the Committee of Ministers with the Court’s approval.”43

46. This proposal is interesting and of value in its own right, although it would not help the Court with its workload in the short term. It could be given a more expansive sense than that contained in the Group of Wise Persons’ proposal. It should be noted that elaboration of such a text would involve various challenges and its adoption would probably be a difficult and lengthy process, requiring a new amending protocol. Further work could be undertaken by the DH-PR, on the basis of the Reflection Group’s conclusions on the possible content of a Statute.44

Developing the Court into a “constitutional court”

47. This idea has a long history; it arose again recently at the Stockholm Colloquy. For current purposes, it can be taken to mean a Court with some degree of power to choose from amongst the applications it receives.45 The Court might ultimately one day develop in this direction, but the time is not yet ripe to discuss the proposal further. The 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. The new admissibility criterion in Protocol No. 14 and the pilot judgment procedure are developments that could lead in the direction of a “constitutional court,” but it is currently not possible fully to evaluate their effects.

IV. Conclusions and proposals for future activities

48. It is clear that the Court cannot continue with its current caseload and the overwhelming flow of new applications. No single judicial body, above all one whose role is intended as subsidiary to that of national authorities, could be expected to deal with the number of applications that the Court receives. The constantly widening gap between the Court’s capacity and the demands made on it means that the effectiveness, credibility and stability of the entire system are at serious risk.46

49. Protocol No. 14, even if intended by its drafters as an intermediate step in a longer process of reform, remains nevertheless indispensible and essential even to the short-term effectiveness of the Court. Already signed by all 47 member states, its non-ratification by one presents an obstacle to realising more far-reaching reforms that could be proposed or envisaged for the future. For these reasons, it remains indispensible that Protocol No. 14 enter into force without delay.

50. Whatever the adaptations or even reforms that may be made to the Convention system, radical improvements at national level are necessary. These should take various forms, as mentioned in this report. The Council of Europe can provide crucial assistance, both via the Court, as also mentioned above, and by way of inter-governmental activities, for example guidance in the form of Committee of Ministers’ recommendations, technical assistance during the execution process and capacity-building projects, including the HELP programme. Sufficient resources should be allocated to these crucial functions. The Human Rights Trust Fund can also help support national measures to improve implementation of the Convention.

51. Indeed, it is essential to the Convention system as a whole that any increases in Court funding should not come at the expense of the budget available for activities concerning human rights monitoring, cooperation programmes or standard-setting. This would be counter-productive to the overall aim of reducing the Court’s case-load by avoiding violations and enhancing domestic remedies for when they occur; in other words, by reinforcing subsidiarity.

52. The following suggestions should be pursued:

1. Measures not requiring amendment of the Convention

Filtering of applications

    · The Court could create a pool of judges within the existing Court devoted to filtering.

Improving domestic remedies

    · A non-binding Committee of Ministers’ instrument on domestic remedies for excessive length of proceedings should be drafted.

Pilot judgment procedure

    · The Court could elaborate an explanation of what the pilot judgment procedure involves.
    · Respondent states should promptly and effectively implement general measures identified in pilot judgments.
    · A manual could be drafted whereby states would share their various experiences of the pilot judgment procedure.

Unilateral declarations

    · Where appropriate, states should be encouraged to make unilateral declarations so as to allow the Court to strike certain cases out of its list.

Applications and admissibility

    · The Court’s more rigorous practice with respect to application of the six-month time-limit is to be supported.

Developing the Court’s case-law à droit constant

    · The Court could develop its interpretation of certain articles of the Convention relating to procedure with a view to relieving its situation.

Secondment of national judges to the Registry of the Court

    · More member states should be encouraged to second national judges to the Registry.

Enhancing States parties’ understanding and application of the general principles of the Court’s case-law contained in judgments of principle

    · Greater use should be made of third party interventions.
    · The Court could issue prompt press releases whenever it invites or grants leave to make a third party intervention or a case has been identified as likely to lead to a judgment of principle.
    · The Court could exercise more flexibly the discretion to extend the time limits for requesting leave to intervene.

Provision of information to potential applicants to the Court

    · The Warsaw pilot project should be continued and could be extended to other Council of Europe information offices.

Publication and dissemination of the Convention and the Court’s case-law

    · There could be a study of the implementation and impact of Recommendation Rec(2002)13.
    · The Court could publish up-to-date information on its case-law on admissibility, with translations into non-official languages.

Role of the Council of Europe Commissioner for Human Rights

    · The Commissioner for Human Rights should be supported in his contribution to guaranteeing the long-term effectiveness of the control system of the Convention.

Just satisfaction

    · The Court could explain further the criteria by which it systematically calculates awards of just satisfaction.
    · The Court could proceed with the development of the HUDOC system so as to allow analysis of patterns in the Court’s awards of just satisfaction.

2. Measures requiring amendment of the Convention

Filtering of applications

    · The creation of a judicial committee, including its budgetary implications, should be examined further.

Advisory opinions

    · Consideration should be given to the possibility of extending the Court’s competence to give advisory opinions.

Statute for the Court

    · Further work should be undertaken on a Statute for the Court.

3. Accompanying measures

Consultations at national level

    · Further to Committee of Ministers’ Declaration Dec(2007)1002, member states should be encouraged to take active steps to consult civil society and other stake-holders on the question of guaranteeing the long-term effectiveness of the control system of the European Convention on Human Rights.

* * * * *

Appendix I
Main documents

Meeting documents

- Report of the 65th CDDH meeting

CDDH(2007)023

- Report of the 1st meeting

DH-S-GDR(2007)016

- Report of the 2nd meeting

DH-S-GDR(2008)007

- Report of the 66th CDDH meeting

CDDH(2008)008

- Interim report

CDDH(2008)008 Add. II

- Report of the 3rd meeting

DH-S-GDR(2008)012

- Report of the 67th CDDH meeting

CDDH(2008)014

- Report of the 4th meeting

DH-S-GDR(2009)006

- Report of the 5th meeting

DH-S-GDR(2009)012

Background documents

- List of Reform Proposals of the ECHR Control Mechanism and Improving its Efficiency, Secretariat Memorandum, 9 April 2001

CDDH-GDR (2001) 1

- GDR’s examination of the Reform Proposals contained in CDDH-GDR (2001) 1 (taken from the Activity Report of 15 June 2001)

CDDH-GDR (2001) 10 (inc. Appendices I & II)

- Report of the Group of Wise Persons to the Committee of Ministers

CDDH-GDR(2007)001

- Existing proposals for ensuring the long-term effectiveness of the ECHR control mechanism – compendium prepared by the Secretariat

CDDH-GDR(2007)002

- Comments by the Secretary General on the Wise Persons’ report

CDDH-GDR(2007)003

- Views of the Parliamentary Assembly’s Rapporteur on the Group of Wise Persons’ Report

CDDH-GDR(2007)004

- Opinion of the European Court of Human Rights on the Group of Wise Persons’ Report

CDDH-GDR(2007)005

- Views of the Council of Europe Commissioner for Human Rights on the Group of Wise Persons’ Report

CDDH-GDR(2007)006

- NGO Comments on the Group of Wise Persons’ report

CDDH-GDR(2007)007

- Lord Woolf’s report: “Review of the Working Methods of the European Court of Human Rights”

CDDH-GDR(2007)008

- Synthesis of the Colloquy on “Future developments of the European Court of Human Rights in the light of the Wise Persons’ Report,” San Marino, 22-23 March 2007

CDDH-GDR(2007)009

- Proceedings of the Workshop on “The improvement of domestic remedies with particular emphasis on cases of unreasonable length of proceedings,” Strasbourg, 28 April 2005

CDDH-GDR(2007)010

- Conclusions of the High-level Seminar on “Reform of the European human rights system,” Oslo, Norway, 18 October 2004

CDDH-GDR(2007)011

- Proceedings of the Colloquy “Towards stronger implementation of the ECHR at national level,” Stockholm, 9-10 June 2008

H/Inf (2008) 11

Working documents

- Comments by the German expert

CDDH-GDR(2007)012

- Comments by the Polish expert

CDDH-GDR(2007)13

- Background paper and possible elements for the recommendation on access to legal advice for potential applicants to the Court (prepared by the Secretariat)

DH-S-GDR(2008)001

- Position paper of the Polish delegation with regard to secondment of national judges to the Registry of the Court

DH-S-GDR(2008)003

- Position paper of the Polish delegation with regard to pilot judgments

DH-S-GDR(2008)004

- Information note prepared by the Registry of the Court

DH-S-GDR(2008)005

- Information note prepared by the Office of the Commissioner

DH-S-GDR(2008)006

- “Pilot judgments: the experience of the Government Agent for Poland” (submitted by the Polish expert)

DH-S-GDR(2008)008

- Background document prepared by the Secretariat on the Court’s caselaw concerning domestic remedies

DH-S-GDR(2008)009

- Background document prepared by the Secretariat on the statutes of various international judicial bodies

DH-S-GDR(2008)010

- The Court’s review of the pilot-judgment procedure (document prepared by the Registry of the Court)

DH-S-GDR(2008)011

- Background document prepared by the Secretariat on a possible non-binding instrument of the Committee of Ministers on domestic remedies with respect to excessive length of judicial proceedings

DH-S-GDR(2009)001

- Background document prepared by the Secretariat on increased use of third party interventions before the Court

DH-S-GDR(2009)002

- Background document prepared by the Secretariat: possible text for a draft resolution of the Committee of Ministers on developing the Court’s case-law á droit constant

DH-S-GDR(2009)003

- Document presented by the Norwegian and Dutch experts on extending the Court’s jurisdiction to give advisory opinions

DH-S-GDR(2009)004

- Advisory Committee on Issues of Public International Law (The Netherlands), “Advisory Report on the Application of Protocol No. 14 to the ECHR” (The Hague, November 2008)

DH-S-GDR(2009)005

- Preliminary Opinion of the CDDH on putting into practice certain procedures envisaged to increase the Court’s case-processing capacity

CDDH(2008)014 Add. I

- Compendium of submissions made by civil society organisations

DH-S-GDR(2009)008

- Document presented by the United Kingdom expert on pilot judgments

DH-S-GDR(2009)009

- Memorandum prepared by the Registry on the pilot judgment procedure

DH-S-GDR(2009)010

- Background document prepared by the Secretariat on establishing a network of government agents: creation of an on-line discussion forum

DH-S-GDR(2009)011

- Compendium of information received to date from States in response to the requests made at and following the 4th meeting

DH-S-GDR(2009)013

- Warsaw Pilot Project – information provided by the Registry lawyer employed in the Council of Europe Information Office

DH-S-GDR(2009)014

* * * * *

Appendix II
Possible Statute for the European Court of Human Rights

Position of the DH-S-GDR

1. At its 3rd meeting (8-10 October 2008), the Group continued its detailed consideration of the question of a possible Statute for the European Court of Human Rights, as proposed in the Report of the Group of Wise Persons, taking into account also two documents submitted by the Polish expert 47 and a background paper prepared by the Secretariat on the statutes of various international judicial bodies.48

2. Whilst welcoming and supporting the proposal, the Group concluded that its terms of reference meant that it would not be appropriate for it to engage in further, detailed work on the issue. It therefore expressed the following position on the issue, whilst recommending that it be transmitted to another subordinate body of the CDDH for further work.

Status and amendment procedure

3. The Group envisaged that such a Statute would occupy a position in between the existing European Convention on Human Rights and the Rules of Court. It would in particular contain provisions taken from the current texts of both the Convention and the Rules of Court, as well as from other relevant Council of Europe instruments. Its introduction would presuppose amendment of the Convention. Subsequent amendment of the Statute itself would be by a resolution of the Committee of Ministers.

Arguments for and against further work on a Statute

4. The Group’s discussions revealed the following arguments in favour of developing a Statute for the Court:

i. Flexibility. Insofar as a Statute would contain provisions currently found in the Convention, it would allow greater flexibility in amending those provisions. This would allow the Court to develop more quickly and efficiently in response to new problems and changing circumstances.

ii. Clarity. A Statute would also allow clarification and precision of certain important issues currently addressed in the Rules of Court and developed through the Court’s practice.

iii. Visibility. By enhancing the legal status of certain important issues currently found only in the Rules of Court, a Statute would increase their visibility and legitimacy.

5. The Group also noted certain arguments against proceeding with work on a Statute.

    i. Length of time. Work on a Statute would be highly technical and potentially very time-consuming.

    ii. Need for ratification. Insofar as it would involve changing the status of certain provisions currently found in the Convention, introduction of a Statute would presuppose amendment of the Convention, which would require ratification by member States, a political process of uncertain duration and outcome.

Possible contents of a Statute

6. The Group broadly agreed with the Wise Persons’ proposal that the Statute contain provisions currently found in the Convention. The Group of Wise Persons had suggested that most of the provisions contained in Section II of the Convention could be “downgraded.”49 The Reflection Group also considered that certain provisions currently found in the Rules of Court, for example Rule 39 on interim measures, may be suitable for inclusion by “upgrading” and also modified where necessary.

7. It also considered that provisions found, for example, in other relevant treaties, notably the General Agreement on Privileges and Immunities of the Council of Europe and its Protocols and the European Agreement relating to Persons participating in proceedings of the European Court of Human Rights, could also be further developed in the Statute.

1 This document has been classified restricted at the date of issue; it will be declassified at the 119th Session of the Committee of Ministers (12 May 2009).

2 Adopted by the CDDH at its 68th meeting (Strasbourg, 24-27 March 2009).

3 The CDDH transmitted its Preliminary Opinion to the Ministers’ Deputies on 1 December 2008 (“CDDH Preliminary Opinion,” see doc. CDDH(2008)014 Addendum I). The Ministers’ Deputies also requested the Committee of Legal Advisers on Public International Law (CAHDI) to give, by 21 March 2009, an opinion on the public international law aspects of this issue and to inform the CDDH of this opinion through the Secretariat.” The CAHDI adopted its opinion on 20 March 2009 (“CAHDI Opinion,” see doc. CAHDI (2009) 2, 20/03/09). The CDDH also took note of the report of the Dutch Advisory Committee on Issues of Public International Law on the Application of Protocol No. 14 ECHR (The Hague, November 2008).

4 CAHDI Opinion, § 11 and “Conclusions and recommendations,” § 1.

5 CDDH Preliminary Opinion, §§ 5-7.

6 CAHDI Opinion, § 16.

7 Protocol No. 9 was in force from 1/10/94 until entry into force of Protocol No. 11 on 1/11/98, by which time it was in force for a total of 24 states.

8 The CDDH arrived at this conclusion after considering inter alia the CAHDI Opinion.

9 CAHDI Opinion, § 11.

10 Ibid, § 12.

11 Ibid, “Conclusions and recommendations” § 2.

12 This would constitute the agreement between the negotiating states required by Article 25(1)(b) of the 1969 Vienna Convention on the Law of Treaties. See the CAHDI Opinion, §§ 25 & 28.

13 Ibid, § 33. The Vienna Convention requires the “negotiating states” to have agreed on provisional application. It does not stipulate that such an agreement must be limited to those states. There is nothing to prevent states that have subsequently consented to be bound by Protocol No. 14 from participating. See the CAHDI Opinion, § 30.

14 Ibid, § 33.

15 Ibid, § 34. In this respect, one could note the Council of Europe’s established practice of requiring the unanimous consent of the parties to amendments to Conventions made under a special procedure set out in the relevant convention. See, for example, Article 44 of the 2007 Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS 201) (read in conjunction with paragraph 282 of its Explanatory Report) and Article 19 of the Council of Europe Convention on Access to Official Documents (adopted in 2008 but not yet opened for signature) (read in conjunction with paragraph 101 of its Explanatory Report).

16 CAHDI Opinion, § 40.

17 Ibid, § 41.

18 Article 20(1) of Protocol No. 14 reads as follows: “From the date of entry into force of this Protocol, its provisions shall apply to all applications pending before the Court …”

19 CAHDI Opinion, § 42.

20 Ibid, §§ 43-44.

21 Ibid, § 39.

22 Ibid, § 38.

23 Ibid, § 20. According to Committee of Ministers’ Statutory Resolution (93)27, the decision on opening a new protocol for signature shall be taken by a two-thirds majority of the Representatives casting a vote and a majority of the Representatives entitled to sit on the Committee.

24 CAHDI Opinion, “Conclusions and recommendations,” § 2.

25 Ibid, § 20. See further at paragraph 22(iv) below.

26 The CDDH notes that the Dutch Advisory Committee recommends that “the consent to be bound by Protocol No. 14bis should be expressed as far as possible without reservation as to ratification, acceptance or approval.” Whilst this would indeed be preferable, it remains to be seen how many states’ national constitutional laws would allow them to act in such a way.

27 Not to be confused with the concept of “a combination of options” mentioned as Option F in the CDDH Preliminary Opinion (see § 25), which was intended to imply combining elements of other options to form a single new option. For the record, it should be noted that this “parallel procedures” option was neither raised in the CDDH Preliminary Opinion nor explored in the CAHDI Opinion.

28 See the CAHDI Opinion, “Conclusions and recommendations”.

29 Adopted by the CDDH at its 68th meeting (Strasbourg, 24-27 March 2008).

30 The Group met on the following dates: 12-14 December 2007, 12-14 March 2008, 8-10 October 2008, 28-30 January 2009 and 4-6 March 2009.

31 See the Group of Wise Persons’ report, para. 136.

32 Application no. 36813/97, judgment of 29 March 2006.

33 See docs DH-S-GDR(2008)009 and DH-S-GDR(2009)001.

34 See the Group of Wise Persons’ report, para. 140.

35 The paper presented by the United Kingdom expert gives an indication of the various categories of case to which the pilot judgment procedure may be appropriate, for instance what are described as “rule of law cases,” “administration of due process cases” and “issue specific class actions” (see doc. DH-S-GDR(2009)009).

36 Lord Woolf, “Review of the working methods of the European Court of Human Rights,” December 2005.

37 Under this project, a lawyer, trained and paid by the Registry, worked part-time in the Council of Europe Information Office, providing information on the Convention system to interested individuals.

38 See the Group of Wise Persons’ report, para. 134.

39 The CDDH, at its 66th meeting (Strasbourg, 25-28 March 2008), had suggested that the Ministers’ Deputies decide to come back to the issue of the national aspect of the Reform (i.e. some form of review of implementation of existing recommendations) in 2-3 years’ time. See also at footnote 5 above for the views of the DH-PR.

40 Namely Committee of Ministers’ Recommendations to member states No. R(2000)2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, Rec(2004)5 on the verification of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the European Convention on Human Rights and Rec(2004)6 on the improvement of domestic remedies.

41 See the Group of Wise Persons’ report, para. 129.

42 See the Group of Wise Persons’ report, para. 135.

43 See the Group of Wise Persons’ report, para. 128.

44 See Appendix II for the Reflection Group’s conclusions. The DH-PR, at its 64th meeting, decided to inform the CDDH of its view that further work on a Statute was fully justified and that the DH-PR would be the appropriate body. The CDDH, following its 67th meeting (Strasbourg, 25-28 November 2008), submitted draft terms of reference for the creation of a committee of experts on a draft statute for the European Court of Human Rights to the Committee of Ministers for possible adoption.

45 Different national constitutional courts have various approaches, with the certiorari procedure of the US Supreme Court perhaps representing one extreme.

46 The Court’s annual deficit – the difference between the number of applications allocated to a Chamber or Committee and the number disposed of, in other words the increase in the size of the backlog – in 2008 was 17,806, compared with 12,866 for 2007 and 9,678 for 2006. The provisional figure for the total backlog of cases pending before a Chamber or Committee, as of 28 February 2009, was 102,720.

47 One specific document (doc. DH-S-GDR(2007)013) and another more general, dated 1 October 2008

48 doc. DH-S-GDR(2008)010

49 See doc. CM(2006)203, para. 49


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