Ministers' Deputies / Working Parties

GT-SUIVI.Interlaken

Ad hoc working party on the follow-up process

to the Interlaken Declaration

GT-SUIVI.Interlaken(2010)7 23 June 20101

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Steering Committee for human rights (CDDH)

First Report on Implementation of the Interlaken Declaration (70th meeting, Strasbourg, 15-18 June 2010)

Item to be considered by the GT-SUIVI.Interlaken at its meeting on 29 June 2010

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Summary

The CDDH, in its activities to implement the Interlaken Declaration, has in particular:

- adopted reports on proposals (i) concerning access to the Court (i.e. introducing a fee for applicants), (ii) for dealing with repetitive applications that would not require amendment of the Convention and (iii) for making it possible to simplify amendment of the Convention’s provisions (see Appendices II, III & IV respectively);

- identified a number of specific points requiring further clarification and/ or instructions from the Committee of Ministers (see section III below).

I. Introduction

1. In its initial ad hoc terms of reference of 10 March 2010 to consider the relevant parts of the Interlaken Declaration (see Appendix I), the CDDH was instructed by the Committee of Ministers to submit a first report before the end of June 2010. The present document constitutes that report.

II. CDDH activities to date

2. The CDDH began its work on implementation of the Interlaken Declaration with a meeting of its Bureau in Strasbourg on 23 March 2010, which examined the most appropriate modalities of implementation of the initial ad hoc terms of reference of the CDDH adopted by the Committee of Ministers on 10 March 2010, in particular the question of allocation of various issues to its subordinate bodies, on which point the Bureau proposed the following:2

DH-GDR:
- Access to the Court
- Filtering of inadmissible applications (analysis of the Court’s practice)
- Filtering – setting up of a new filtering mechanism
- Repetitive applications handled by judges responsible for filtering3
- The pilot judgment procedure
- Election of judges

DH-PR:
- Awareness and implementation of Convention standards (the discussion in DH-PR should focus on implementation of existing instruments)
- Domestic remedies
- Supervision of execution of judgments4
- Simplified procedure for amending the Convention

3. The DH-GDR has met twice since the Interlaken Conference, on 24-26 March and 5-7 May 2010 respectively. At these meetings it notably:5

    - identified and specified the relevant parts of the Interlaken Declaration to whose implementation the CDDH and its subordinate bodies could contribute;

    - made suggestions on how to proceed with work on each such part;

    - adopted draft reports, prepared by the United Kingdom and Belgian experts respectively on the basis of contributions from experts and observers, on (i) access to the Court – advisability of introducing a fee for applicants and (ii) proposals for dealing with repetitive applications that would not require amendment of the Convention and decided to submit them to the CDDH for consideration at the latter’s next meeting;

    - exchanged views on the pilot judgment procedure and agreed to return to the issue at its next meeting, taking into account contributions to be made by government agents and civil society at the Court’s request concerning the latter’s preparation of future rules governing the procedure;

    - exchanged views on the election of judges to the Court and inter alia decided to refer to the CDDH the question of a possible Committee of Ministers’ recommendation on national selection procedures for candidates (see further below);

    - appointed the German expert as rapporteur on the issue of a new filtering mechanism and the possibility of its dealing with repetitive applications, to be considered at its next meeting (15-17 September 2010);

    - welcomed and expressed its appreciation of the quality of its dialogue with representatives of the Court;

    - agreed to invite the Chairperson of the GT-SUIVI.Interlaken to its next meeting.

4. The DH-PR has met since Interlaken on 10-12 May 2010. At this meeting it notably:6

    - adopted a draft report responding to the terms of reference to elaborate proposals for making it possible to simplify amendment of the Convention’s provisions on organisational issues and decided to submit it to the CDDH for consideration at the latter’s next meeting;

    - expressed its willingness to assist with Interlaken follow-up work on execution of Court judgments and its supervision by the Committee of Ministers;

    - exchanged views on issues concerning implementation of the Convention at national level, including as regards the possible future role of the DH-PR in this connection and decided to keep this issue on its agenda.

5. The CDDH held its first post-Interlaken meeting on 15-18 June 2010. At this meeting it notably:7

    - held an exchange of views with the Chairperson of the GT-SUIVI.Interlaken, Ambassador Eleanor FULLER (United Kingdom);

    - adopted (i) a report concerning access to the Court (i.e. introducing a fee for applicants), (ii) proposals for dealing with repetitive applications that would not require amendment of the Convention and (iii) proposals for making it possible to simplify amendment of the Convention’s provisions (see Appendices II, III & IV respectively);

    - recalled the importance of consultation with civil society on implementation of the Interlaken Declaration, as mentioned therein;

    - agreed to transmit certain points to the Committee of Ministers for further clarification and/ or instructions (see further below);

    - considered and approved the future activities of its subordinate bodies, as proposed in their respective meeting reports.

6. It should also be noted that the Chairpersons of the CDDH and the DH-GDR participated in the 2nd meeting of the Ministers’ Deputies’ GT-SUIVI.Interlaken working group on 23rd April 2010 and subsequently reported back to their respective committees.8 The CDDH and its subordinate bodies have remained informed of developments within the GT-SUIVI.Interlaken, including through distribution of the latter’s meeting synopses.

III. Specific points requiring further clarification and/ or instructions from the Committee of Ministers

7. In order to continue with its work on certain issues, the CDDH seeks further clarification and/ or instructions from the Committee of Ministers on the following points.

Access to the Court – fees for applicants9

8. The CDDH report on the issue sets out certain modalities for the possible introduction of a fee and reflects the views expressed for and against and the perceived advantages and disadvantages. The CDDH considers that it would be useful to obtain, in parallel with any future work on the issue, the best possible information on why decisions are taken to declare applications inadmissible without further consideration and on what effect a fee or deposit would have. The CDDH also notes that expert assistance in quantifying, in both financial and workload terms, the costs and benefits of any preferred model for a fee or deposit would also be useful.

9. Different views have been expressed in the CDDH on whether or not fees should be introduced as a modality for regulating access to the Court. The CDDH is, however, willing to continue considering the question, should the Committee of Ministers so wish. It therefore invites the Committee of Ministers to indicate whether or not it wishes this issue to be further considered.

Proposals for making it possible to simplify amendment of the Convention’s provisions on organisational issues10

10. The CDDH’s ad hoc terms of reference require it “to elaborate … proposals for making it possible to simplify amendment of the Convention’s provisions on organisational issues.” As mentioned in the Interlaken Declaration, this could be introduced through, for example, a Statute for the Court or a new provision in the Convention similar to that found in Article 41(d) of the Statute of the Council of Europe.

11. Many experts expressed the view that this would also provide an opportunity to address other issues from outside the Convention, for example certain provisions of the Rules of Court, notably Rule 39, as well as unilateral declarations and the pilot judgment procedure.11 All of these would benefit in greater clarity, transparency, authority and legitimacy by explicit reaffirmation of their status through inclusion in a text adopted by the States parties.

12. Some experts did not consider that the terms of reference could or should be pursued in this way: for instance, some felt that the CDDH’s ad hoc terms of reference were deliberately limited to Convention provisions, that the essential goal was to allow greater flexibility in amending the Convention or that efforts to include such issues would over-complicate an exercise already likely to be difficult and lengthy.12

13. This preliminary question will need to be resolved before the CDDH can address other questions that will arise during future work (see further below). The Committee of Ministers is therefore asked whether the CDDH is to interpret its terms of reference so as to allow it to consider also issues found outside the Convention, such as those mentioned in paragraph 12.

14. The Committee of Ministers is also asked to adopt terms of reference for a Committee of experts on a simplified procedure for amendment of certain provisions of the Convention, this body to be of restricted composition (see the draft terms if reference at Appendix V), the CDDH considering this to be the most effective and efficient way of proceeding.

Election of judges

15. The CDDH considers that the primary responsibility for ensuring the necessary quality of judges falls to States Parties, by ensuring that lists of candidates contained only persons fully satisfying the requirements for the office of judge. It therefore asks the Committee of Ministers whether there would be interest in preparing a recommendation to member States and/ or a compilation of existing good practices concerning national selection procedures.

16. The CDDH also noted that it would probably be useful to reflect further, whilst respecting the competences of the various Council of Europe bodies, on means to reinforce (i) the technical expertise available to the bodies charged with selecting candidates and the election of judges and (ii) the dialogue between the States parties and the Parliamentary Assembly.

Execution of Court judgments and its supervision by the Committee of Ministers

17. The CDDH would be interested in contributing to further work on implementation of the relevant parts of the Interlaken Declaration. It recalls that in the past, it has prepared practical proposals for the supervision of execution of judgments in situations of slow execution,13 with work initially taking place in a working group of restricted, “hybrid” composition, including also experts designated by the Committee of Ministers and co-operating closely with the Department for the Execution of Judgments of the Court. It considers that such an approach had the advantage of bringing together experts on the execution of judgments at national level, experts on supervision of execution at Council of Europe level and the Execution Department, with experience at both levels and in the connections between the two. It would be willing to set up such a committee to work on Committee of Ministers’ supervision of execution of Court judgments in the present context, should the Committee of Ministers so decide.

IV. Next report

18. In accordance with its ad hoc terms of reference, the CDDH will by 31 December 2010 submit a final report on specific proposals for measures that result from the Interlaken Declaration and that do not require amendment of the European Convention of Human Rights, if necessary, additional to those it has already submitted to the Committee of Ministers. This report will be finalised and adopted by the CDDH at its next meeting, due to take place on 2-5 November 2010.

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Appendix I

Initial ad hoc terms of reference for the Steering Committee for Human Rights (CDDH) to consider the relevant parts of the Interlaken Declaration

1079th meeting – 10 March 2010

Appendix 2

(Item 1.6)

1. Name of Committee: Steering Committee for Human Rights (CDDH)

2. Source: Committee of Ministers

3. Duration: These terms of reference shall expire on 31 December 2010 and 15 April 2012

Subject to more specific guidance which may be given by the Committee of Ministers at any time, consider all the relevant parts of the Interlaken Declaration.

In particular:

(a) to elaborate specific proposals for measures that result from the Interlaken Declaration and that do not require amendment of the European Convention of Human Rights, if necessary, additional to those it has already submitted to the Committee of Ministers;

This part of the terms of reference shall be executed through the presentation of a final report to the Committee of Ministers by 31 December 2010;

(b) to elaborate specific proposals for measures requiring amendment of the Convention, including proposals, with different options, for a filtering mechanism within the European Court of Human Rights and proposals for making it possible to simplify amendment of the Convention’s provisions on organisational issues;

This part of the terms of reference shall be executed through the presentation of a final report to the Committee of Ministers by 15 April 2012; an interim activity report shall be submitted by 15 April 2011.

(c) Work on items (a) and (b) shall be pursued in parallel.

In the execution of these terms of reference, the CDDH may commission and conduct the necessary studies and consultations with other bodies, in particular the Court, as well as civil society representatives. It may assign appropriate tasks to its subordinate structures. The Court and its Registry may at all stages contribute to the execution of these terms of reference.

The CDDH shall keep itself informed of action being taken or envisaged by other actors involved in the implementation of the Interlaken Declaration and, if appropriate, may present its views thereon to the Committee of Ministers. In this context, it shall also take into account the first effects of the entry into force of the new procedures foreseen by Protocol No. 14.

The CDDH shall regularly report on progress of work and present its proposals to the Committee of Ministers as and when they are finalised. A first report shall be submitted before the end of June 2010. The Committee of Ministers shall provide the CDDH with the necessary guidance.

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Appendix II

Report on the issue of access to the Court – fees for applicants

1. The declaration adopted at the High Level Conference on the Future of the Court in Interlaken in February 2010 states in section A (“Right of individual petition”):

    1. The Conference reaffirms the fundamental importance of the right of individual petition as a cornerstone of the Convention system which guarantees that alleged violations that have not been effectively dealt with by national authorities can be brought before the Court.

    2. With regard to the high number of inadmissible applications, the Conference invites the Committee of Ministers to consider measures that would enable the Court to concentrate on its essential role of guarantor of human rights and to adjudicate well-founded cases with the necessary speed, in particular those alleging serious violations of human rights.

    3. With regard to access to the Court, the Conference calls upon the Committee of Ministers to consider any additional measure which might contribute to a sound administration of justice and to examine in particular under what conditions new procedural rules or practices could be envisaged, without deterring well-founded applications.

2. Around 90% of the applications received by the Court are clearly inadmissible. At present, an applicant to the European Court of Human Rights is not obliged to pay any application fee or deposit upon making their application, nor is there any penalty where an applicant makes an application that is entirely without merit or clearly inadmissible. Reflecting the practice of high-level courts in many member states, it has been suggested that some form of fee, deposit or penalty for applicants could be introduced to deter inadmissible applications. The objective of doing so would not be to raise revenue for the Court. However, it is clearly important that the amount of money received through any such scheme and the resources saved through any consequent reduction in inadmissible applications must together outweigh the cost of administering a scheme.

3. Preliminary discussions in the CDDH and its sub-group the DH-GDR have revealed a wide divergence of view on this suggestion, including on the philosophical and practical arguments underpinning it. This paper therefore sets out some possible models for a fee, deposit or penalty for applicants to the Court, and a brief analysis of the arguments in favour of and against introducing such a system. It also notes some of the further work that would be required to develop a full proposal.

4. Proposals have been made for other ways in which to regulate access to the Court. These ideas are beyond the scope of this paper.

5. The Interlaken Declaration also seeks to reduce the volume of inadmissible applications by calling upon States Parties and the Court to provide better information to potential applicants and their representatives about applications procedures and admissibility criteria. The Declaration also recommends that the establishment in the Court of a more extensive filtering mechanism for clearly inadmissible cases should be considered. The CDDH and its sub-groups continue to work on these issues.

6. Different views have been expressed in the CDDH on whether or not fees should be introduced as a modality for regulating access to the Court. The CDDH is, however, willing to continue considering the question, should the Committee of Ministers so wish. It therefore invites the Committee of Ministers to indicate whether or not it wishes this issue to be further considered.

Models for a fee, deposit or penalty system

7. Under most models, an applicant to the Court would be required to pay a sum of money before their application is considered. This would prima facie be required from every applicant.

8. The amount of money required could be set absolutely regardless of the applicant’s location, or by reference to the relative value of money in the applicant’s state of origin or in the state(s) against which the application is made. Some consider that varying the amount of money in this way is discriminatory. However, others contend that a uniform amount of money across Europe would disadvantage applicants from states with lower relative incomes or weaker currencies.

9. In the event that the amount of money were linked to the applicant’s state of origin, arrangements may need to be made for unusual circumstances, such as:

    (a) an applicant who is a national of (one of) the member state(s) against whom they seek to make an application, but who is (or claims to be) resident in another state; or

    (b) an applicant who is not resident within the territory of the Council of Europe.

10. A system could allow for the amount of money to be reduced or waived entirely if the applicant is unable to afford it. The ability to pay could be assessed in many ways, such as whether the applicant:

    (a) is entitled to certain state benefits in their state of origin;

    (b) would be entitled to free legal representation or to remission from court fees in their state of origin; or

    (c) has an income that is below a certain proportion of the median income in their state of origin.

Any assessment in this way would need to be supported by evidence, and may require a system of appeal.

11. A system could also allow for the amount of money to be reduced or waived entirely in respect of certain types of proceedings; for example, many national systems recognise cases relating to the custody of children as a special case. Alternatively or additionally, a system could also allow for the requirement to pay to be waived where the applicant is deprived of their liberty, whether for a criminal offence or for immigration reasons.

12. As a further alternative, the amount of money could be sought only in respect of certain types of proceedings, or from certain types of applicants. For example, some national systems link the amount of money to the value of the proceedings, or require payment only from businesses. However, an approach of this nature would not appear to be consonant with the intention of reducing inadmissible applications, as opposed to raising funds for the Court.

13. A system would need to permit urgent applications to be made, particularly where an indication under Rule 39 of the Rules of the Court is sought.

14. The amount of money paid by the applicant could be refunded in certain circumstances, such as:

    (a) if their application is not declared clearly inadmissible by a single judge;

    (b) if their application is declared admissible; or

    (c) if their application results in the finding (or acceptance) of one or more violations.

Where the money is refunded in this way, particularly in situation (a), it could have more of the character of a deposit than a fee. The money could be refunded either by the Court (especially in situations (a) and (b)), or by the respondent state(s) (especially in situation (c), in which case it would form part of the costs awarded).

15. There are alternative models under which an amount of money would not be requested at the time that an application is made. For example, an applicant whose application is considered by a Registry lawyer to be entirely without merit or clearly inadmissible could be advised of this, and invited to withdraw their application; the applicant could however opt for their application to be judicially considered upon the payment of a sum of money that would be refunded if a Judge of the Court disagrees with the Registry lawyer’s assessment. It is however questionable whether such a system would help to reduce the number of inadmissible applications received by the Court.

16. A second alternative would be for a fee to be charged to an applicant whose case is declared clearly inadmissible by a single judge. However, given that the applicant at this point would have no further incentive to engage with the Court, it is questionable whether it would usually be possible to collect such a fee. The “jeopardy” posed by such a fee, particularly if set at such a level to be a real discouragement to inadmissible applications, could also be a greater disincentive to well-founded applications than an initial payment.

17. A variation on this latter approach would be to levy such a fee against the legal representative (if any) of a person, and not to permit that representative to present further applications until the fee if paid. However, if no fee were then levied upon unrepresented applicants, this could result in many applicants simply not declaring that they are legally represented until their application has passed the point at which this fee could be levied.

Advantages of a fee, deposit or penalty system

18. People tend to value less something that they receive for free. The right of individual application to the Court is an important feature of the system for the protection of human rights in Europe; it therefore has a great moral value. The intention of any fee, deposit or penalty system would be to place on the right of application a financial value to reflect its moral value, and to ensure that applicants therefore appreciate the significance of an application to the Court. In this way, applicants would be discouraged from abusing the right of application, or treating it frivolously.

19. It has been suggested that many inadmissible applications to the Court arise from a perception that, as an application is free, an applicant has nothing to lose by making their application. It has also been suggested that the potential gain of a sum of money is a motivating factor for some applicants to the Court, especially if they stand no personal risk in applying. A fee, deposit or penalty would discourage applicants whose application to the Court is purely speculative.

20. In this way, applicants without a well-founded case whose interest in applying to the Court is based purely on financial considerations could be discouraged. Applicants could also be encouraged to pay greater attention to advice whether their application has merit before they send their application to the Court. The payment of a sum of money upon application is well-accepted in national legal systems for these reasons as part of the good administration of justice.

Disadvantages of a fee, deposit or penalty system

21. The free availability of individual application to the Court is considered by some to be one of its key features, reflecting the Court’s accessibility to all regardless of means or situation. For some, the objection to a fee, deposit or penalty is therefore one of principle.

22. There would however remain with any system the risk, however small, that it would deter well-founded applications, even with fee reduction criteria, refund arrangements and other easements: there might be considered always to be applicants with well-founded applications for whom the financial risk or administrative difficulty would be too great.

23. It would be a challenging task to set and maintain the level of a fee or deposit. This is particularly true if the amount differs between member states, as variations in the cost of living and the exchange rate of currencies would need to be considered and quantified. Similarly, if a system to reduce or waive fees were established, it could be difficult to establish financial thresholds and evidence requirements that operate equitably across all member states or, if set separately for each member state, that do not particularly disadvantage applicants from certain member states. The administration of such a system could also be challenging: while it would be difficult for a centralised administration in Strasbourg to assess and verify evidence of an inability to pay, some applicants would equally be unwilling to be required to engage with their national authorities to provide this evidence, especially where their application is against their own state.

24. The payment system for a fee or deposit could also present administrative issues; the Registry has however indicated that it would be willing to explore feasible approaches to administration. Cross-border transactions, particularly for member states that do not use the Euro, tend to be expensive and difficult to arrange. States could themselves provide arrangements for the collection of fees in the national currency and the certification of their payment for an application, but this could present a barrier to applicants who are unwilling to engage directly with their national authorities in making their application. Alternatively, the Court could itself provide a means by which fees could be paid in the national currency in each member state.

25. Collectively, there would be a risk that a fee or deposit system could cost more to administer than would be justified by its benefits, and more than the money received and the resources saved from a reduction in inadmissible applications.

Further considerations

26. If the Committee of Ministers indicates that it wishes further examination to be given to this subject, the CDDH expects that the following questions may be among those that would need to be resolved, in addition to the issues noted above:

    (a) Would the introduction of a fee, deposit or penalty require the amendment of the Convention?

    (b) Who should set the amount of a fee or deposit and, if relevant, the criteria and evidence requirements for its remission? How often should this be reviewed?

    (c) To whom should the fee or deposit be paid, and how would this be certified?

    (d) Should the money raised from fees, unreturned deposits or penalties be retained directly by the Court, or should it be returned to the general budget of the Council of Europe? Alternatively, should a proportion be paid to the state(s) against whom an unsuccessful application was made?

    (e) What happens to an application where the applicant refuses to pay an application fee or deposit?

27. The CDDH considers that it would be useful to obtain, in parallel with any future work on the issue, the best possible information on why decisions are taken to declare applications inadmissible without further consideration and on what effect a fee or deposit would have. The CDDH also notes that expert assistance in quantifying, in both financial and workload terms, the costs and benefits of any preferred model for a fee or deposit would also be useful.

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Appendix III

Proposals for dealing with repetitive applications

that would not require amendment of the Convention

1. The Court estimates that more than half of applications pending before Committees and Chambers of the Court are repetitive in nature.

2. It is essential that the States assume fully their responsibility in this respect, notably by – in terms of measures that do not require amendment of the Convention – taking a more active role in the management of cases both in advance of (application of the Convention at national level, friendly settlements, unilateral declarations) and following decisions of the Court (execution and its supervision).

3. For its part, the Court could identify more clearly in its decisions the existence of a structural problem, explain the criteria having led to the application of the pilot judgment procedure and, in that context, to the choice of a pilot case and define the possible means of remedy.

4. The appropriate Council of Europe and national bodies, including independent national human rights institutions, could assure monitoring and assistance.

Description

5. Repetitive cases could from the outset be described as a great number of applications which arise from similar situations raising the same issues of substance, finding their origin in an easily identifiable structural/ systemic problem and not clearly inadmissible.

6. The underlying problem may originate in legislation or an absence of legislation or an administrative or judicial practice that may be contrary to the Convention (length of pre-trial detention, length of proceedings, detention conditions, non-execution of final judgments, property rights…).

Prior to the decisions of the Court

7. It is essential not to lose sight of the fact that enhanced implementation of the Convention at national level is the first preventive measure that can as such reduce the number of well-founded repetitive applications before the Court. This enhanced implementation of the Convention falls within the responsibility of the State, to ensure respect for Convention rights (Art. 1 ECHR) and effective and accessible domestic remedies for avoiding similar future violations (Art. 13 ECHR).

8. It has been proposed in this respect that it should be possible to establish guidelines and recommendations concerning situations which are regularly the subject of repetitive applications. Moreover, the information to be provided by States before the end of 2011 concerning the implementation of the Interlaken Action Plan could also provide the basis for new recommendations.

9. In this context, the Committee also recalled that the Interlaken Declaration had called for an effective review of the implementation of the seven recommendations to member States adopted by the Committee of Ministers over the past 10 years aiming at better implementation of the Convention at national level and noted that this could help to reduce the number of repetitive applications.14

10. Greater use of friendly settlements would also provide scope to reduce the Court’s workload and to offer rapid solutions to the State and applicant.

11. For this, it would be necessary to generalise the Registry’s practice of putting itself at the disposal of the parties at any time during the proceedings in order to arrive at a friendly settlement of the case. In the management of repetitive applications, this could be manifested through wider use of the practice of communicating case-file(s) (if possible en masse), where appropriate with a suggestion of figures and/ or individual measures, or even to leave to the State the job of proposing to the Court a global solution on the basis of a simplified communication by the Registry.

12. The generalisation of the practice of unilateral declarations makes it possible to arrive at a series of Court decisions noting the acknowledgement of a violation by the State, the grant of compensation adjudged to be in conformity with the Convention and, where necessary, individual measures. This generalisation would take place in case of an unreasonable refusal by an applicant to accept a satisfactory offer of a friendly settlement but also by the State from the outset, regardless of any negotiations relating to a possible friendly settlement.

13. The practice of unilateral declarations could be developed particularly for cases of a repetitive nature, allowing the State to propose from the outset, in addition to possible compensation and/ or individual measures, general measures with a view to remedying a structural problem, where these are possible and appropriate. For the practice to be understood and accepted by applicants, it is important that it appears in a text (for instance the future Statute or the Rules of Court).

14. The Court can in fact strike a case out of its list in view of the State’s commitments or concessions which would be regarded as in conformity with the Convention and thus unblock a situation of unreasonable refusal on the part of the applicant to settle the dispute, or allow forthwith the State to choose concrete means to fulfil its obligations under the Convention. In any case, the Court can compel the State to respect its commitments by restoring an application to its list of cases, if necessary (Art. 37).

15. The decisions to strike a case out following a unilateral declaration should, like friendly settlements under the new Article 39, be subject of modalities of supervision by the Committee of Ministers as far as their execution is concerned.

16. Furthermore, the Court’s case-law on the application of Article 41 should be sufficiently foreseeable for the applicants and detailed for the Governments to encourage this type of procedure.

17. Regular meetings between the members of the Registry responsible for dealing with applications against a certain State and its government agent should take place on the existence and processing of repetitive applications.

The Court’s decisions and their follow-up

18. There are cases for which a well-established case law already exists and which concern situations that the State concerned has or has not resolved. Such cases constitute the core competence of and may be resolved by the three-judge committees (new Art. 28 § 1 b), the effectiveness of which, in this respect, should be evaluated as soon as possible.

19. For cases for which such well-established case-law does not yet exist, the adoption of a pilot judgment may be the most adequate solution.

20. The Conference notably invited the Committee of Ministers to consider whether repetitive cases could be handled by a new mechanism, within the Court and responsible also for filtering, going beyond the committee of three judges, to be defined (see paragraphs 6.c.ii. and 7.c.i. of the Interlaken Declaration Action Plan).

21. When a violation has already been declared by the Court and the State has taken useful measures to avoid its repetition, the new admissibility criterion introduced by Protocol No. 14 may prove to be very useful for settling similar cases which would no longer pose essential issues concerning human rights, having been duly considered by a domestic tribunal and not having caused the applicant significant disadvantage.

22. The Court could more systematically identify in its judgments the existence of a structural/ systemic problem, explain the criteria having led to application of the pilot judgment procedure and, in that context, to the choice of a pilot case and define possible avenues to remedy a given repetitive case.

23. In its supervision of the execution of judgments, the Committee of Ministers should give a priority to cases that reveal a structural problem and must be able to indicate to the State that it can, on request, obtain the necessary practical and legal assistance from the Council of Europe.

24. These cases are currently grouped in sub-categories according to the violation perceived by the Committee of Ministers, which is sufficient in particular where the violation requires a general measure such as repeal or amendment of a provision of law.

25. It has been proposed that groups of Deputies confronted with similar problems meet to seek together solutions and to elaborate draft resolutions for submission to the plenary Committee, in collaboration with an Execution Department reinforced in terms of human resources and other relevant bodies of the Council of Europe. It is recalled that the DH-PR, in the context of its work on implementation of the Interlaken Declaration, may address the question of supervision of execution in future, notably following the next CM/DH meeting (1-3 June 2010).

26. The assistance of the Council of Europe is desirable to encourage a pro-active approach by States when presenting to the Committee of Ministers action plans and schedules for the introduction of remedies for persons who find themselves in a situation similar to that condemned by the Court, whether or not they have lodged an application.

27. Regular review by national institutions of a State’s execution of judgments rendered against it can in the same way prove highly useful.

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Appendix IV

Proposals for making it possible to simplify amendment of

the Convention’s provisions on organisational issues

I. Interpretation of the CDDH’s ad hoc terms of reference

1. The CDDH’s ad hoc terms of reference require it “to elaborate … proposals for making it possible to simplify amendment of the Convention’s provisions on organisational issues.” As mentioned in the Interlaken Declaration, this could be introduced through, for example, a Statute for the Court or a new provision in the Convention similar to that found in Article 41(d) of the Statute of the Council of Europe.

2. Many experts expressed the view that this would also provide an opportunity to address other issues from outside the Convention, for example, certain provisions of the Rules of Court, notably Rule 39, as well as unilateral declarations and the pilot judgment procedure.15 All of these would benefit in greater clarity, transparency, authority and legitimacy by explicit reaffirmation of their status through inclusion in a text adopted by the States parties.

3. Some did not consider that the terms of reference could or should be pursued in this way: for instance, some felt that the CDDH’s ad hoc terms of reference were deliberately limited to Convention provisions, that the essential goal was to allow greater flexibility in amending the Convention or that efforts to include such issues would over-complicate an exercise already likely to be difficult and lengthy.16

4. Resolving this preliminary question is a prerequisite to addressing other questions that will arise during future work (see further below). The Committee of Ministers is therefore asked whether the CDDH is to interpret its terms of reference so as to allow it to consider also issues found outside the Convention, such as those mentioned in paragraph 2.

II. Questions to be resolved during future work at expert level

5. At this preliminary stage, it can be observed that the following further questions, possibly amongst others, will need to be resolved at expert level:

    (a) Which issues should be subject to a new amendment procedure: in other words, which of the Convention provisions on organisational issues and, should the possibility of their inclusion be affirmed (see para. 4 above), which issues currently found outside the Convention and/or not relating to organisational matters.

    (b) How the procedure should be introduced, whether by way of:

      (i) Inclusion of relevant issues in a Statute of the Court, with a new provision in the Convention establishing the Statute and its amendment procedure;

      (ii) A new provision in the Convention allowing certain other provisions of the Convention to be amended by a simplified procedure (i.e. an approach similar to that found in Article 41(d) of the Statute of the Council of Europe);17 or

      (iii) Some other approach not yet envisaged.

      In this respect, it can be noted that the choice between these options may to some extent depend on decisions on the eventual scope of the procedure (see (a) above): should only Convention provisions on organisational issues be covered, option (ii) may be sufficient; should other issues also be covered, option (i) may be necessary.

    (c) Who should be involved in the amendment procedure itself, the possibilities including:

      (i) The Committee of Ministers;

      (ii) The European Court of Human Rights; and

      (iii) The Parliamentary Assembly.

      In this respect, it can be noted that identification of the appropriate bodies may to some extent depend on the nature of the provisions that would be subject to the procedure (see (a) above).

    (d) What should be the amendment procedure, with aspects of this question including:

      (i) Which bodies should have the right to propose amendments;

      (ii) Which bodies’ approval should be required to adopt amendments;

      (iii) Whether amendments could be adopted by majority, and if so whether simple or qualified, by unanimity or by a “non-opposition” procedure of implied consent.

III. Creation of a body of restricted composition to pursue future work

6. The Committee of Ministers is asked to adopt terms of reference for a Committee of experts on a simplified procedure for amendment of certain provisions of the Convention on organisational issues (title to be reviewed in the light of the response to the question set out under section I. above), this body to be of restricted composition.

* * *

Appendix V

DRAFT TERMS OF REFERENCE

1.

Committee name:

COMMITTEE OF EXPERTS ON A SIMPLIFIED PROCEDURE FOR AMENDMENT OF CERTAIN PROVISIONS OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS (DH-PS)

2.

Committee type:

Committee of experts

3.

Source of terms of reference:

The Committee of Ministers on the proposal of the Steering Committee for Human Rights (CDDH)

4.

Terms of reference:
Having regard to:

-

Resolution Res(2005)47 on committees and subordinate bodies, their terms of reference and working methods, adopted by the Committee of Ministers on 14 December 2005;

-

the Declaration and Action Plan adopted at the High-level Conference on the Future of the European Court of Human Rights (Interlaken, 18-19 February 2010), as endorsed by the Committee of Ministers at their 120th Session (Strasbourg, 11 May 2010);

-

the Declaration and the Action Plan adopted at the Third Summit of Heads of State and Government of the Council of Europe member states (Warsaw, 16-17 May 2005; CM(2005)80 final, 17 May 2005), in particular chapter I.1. “Ensuring the continued effectiveness of the European Convention on Human Rights”;

-

the Convention for the Protection of Human Rights and Fundamental Freedoms (1950, ETS No. 5) and Protocol No. 14 to the ECHR, amending the control system of the Convention (2004, CETS No. 194);

 

Under the authority of the Steering Committee for Human Rights (CDDH) and in relation with the implementation of the project 2008/DGHL/1403 “Enhancing the control system of the European Court of Human Rights” of the Programme of Activities, the Committee is instructed to:

i.

examine in depth proposals for making it possible to simplify amendment of the Convention’s provisions, with such a procedure to be introduced by means of an amending Protocol to the Convention;

ii.

consider in particular including the following elements within a possible Statute and/ or new Convention provisions:
- certain provisions contained in Section II of the European Convention on Human Rights, with revision where necessary;
- [certain provisions found in the Rules of the Court, with modification where necessary;
- other matters, including certain provisions found in other relevant treaties;]

iii.

consider which bodies should be involved in the procedure, including in particular the possible roles of the Committee of Ministers, the European Court of Human Rights and the Parliamentary Assembly (see also further below);

iv.

consider the most appropriate modality for the introduction of such a procedure, whether by: inclusion of relevant issues in a Statute of the Court, with a new provision in the Convention establishing the Statute and its amendment procedure and/ or (a) new provision(s) in the Convention allowing certain other provisions of the Convention to be amended by a simplified procedure;

v.

consider the precise operation of the new procedure, including the questions of:
- which body or bodies should have the right to propose amendments;
- which body or bodies approval should be required to adopt amendments;

- whether any decisions on adoption of amendments in the Committee of Ministers should be by majority, and if so whether simple or qualified, by unanimity or by a “non-opposition” procedure of implied consent;

vi.

take into account relevant elements of the Wise Persons’ report, as well as of the contributions made on it by the Parliamentary Assembly, the Court, the Secretary General, the Commissioner for Human Rights and civil society, in reply to the invitation given at the 984th meeting of the Ministers’ Deputies (17 January 2007);

vii.

in addition to the Interlaken Conference, take into account also the results of the Colloquy on the future developments of the European Court of Human Rights in the light of the Wise Persons’ report (San Marino, 22-23 March 2007) and the results of other activities and initiatives relating to the reform of the ECHR system, including those undertaken by Sweden, Norway and Poland.

5.

Composition of the Committee:

5.A

Members

Governments of member states are entitled to appoint representatives with the relevant qualifications concerning procedures in the framework of international human rights protection instruments, in particular the European Convention on Human Rights.

The Council of Europe budget will bear the travel and subsistence expenses of 14 members appointed by the following member states: Iceland (Chair) and Armenia, Austria, Bulgaria, Czech Republic, Estonia, Finland, France, Greece, Poland, Russian Federation, Sweden, Switzerland, United Kingdom.

The above-mentioned states may send (an) additional representative(s) to meetings of the Committee at their own expense.

Members appointed by the following states will have their travel and subsistence expenses borne by their national authorities: Belgium, Germany, Netherlands, Norway.

Representatives appointed by other member states may participate in the meetings of the Committee at the expense of these states.

Each member state participating in the meetings of the Committee has the right to vote in procedural matters.

5.B

Participants

i.

The following committees may each send a representative to meetings of the Committee, without the right to vote and at the expense of the corresponding Council of Europe budgetary article:

- the European Commission for the Efficiency of Justice (CEPEJ);

- the European Commission for Democracy through Law (“Venice Commission”).

ii.

The Parliamentary Assembly may send (a) representative(s) to meetings of the Committee, without the right to vote and at the expense of its administrative budget.

iii.

The Council of Europe Commissioner for Human Rights may send (a) representative(s) to meetings of the Committee, without the right to vote and at the expense of its administrative budget.

iv.

The Registry of the European Court of Human Rights may send (a) representative(s) to meetings of the Committee, without the right to vote and at the expense of its administrative budget.

v.

The Conference of INGOs of the Council of Europe may send (a) representative(s) to meetings of the Committee, without the right to vote and at the expense of the body that (s)he (they) represent(s).

5.C

Other participants

i.

The European Commission and the Council of the European Union may send (a) representative(s) to meetings of the Committee, without the right to vote or defrayal of expenses.

ii.

States with observer status of the Council of Europe (Canada, Holy See, Japan, Mexico, United States of America) may send (a) representative(s) to meetings of the Committee, without the right to vote or defrayal of expenses.

iii.

The following bodies and intergovernmental organisations may send (a) representative(s) to meetings of the Committee without the right to vote or defrayal of expenses :

- Organisation for Security and Co-operation in Europe (OSCE) / Office for Democratic Institutions and Human Rights (ODIHR);

- Office of the United Nations High Commissioner for Human Rights.

5.D

Observers
The following non member state:

- Belarus;

 

and the following non-governmental organisations and other bodies:
- Amnesty International;
- International Commission of Jurists (ICJ);
- International Federation of Human Rights (FIDH);
- European Roma and Travellers Forum;
- European Group of National Institutions for the Promotion and Protection of Human Rights
may send (a) representative(s) to meetings of the Committee, without the right to vote or defrayal of expenses.

6.

Working Structures and Methods

 

In order to fulfil its tasks, the Committee:
- may authorise the participation of other participants and/ or observers, without the right to vote or defrayal of expenses;
- is authorised to seek, as appropriate and within its budgetary appropriations, the advice of experts, to have recourse to studies prepared by consultants and to consult relevant non-governmental organisations and other members of civil society.

Bearing in mind the specific nature of this work, it would in the first place be for the Committee of Experts for the improvement of procedures for the protection of human rights (DH-PR) to give appropriate directions to this Committee of experts of restricted composition. The Committee will report on its activities to the DH-PR. The DH-PR will then report to the CDDH.

It should be noted that the research, negotiation and drafting work on this issue will take a relatively long time.

7.

Duration:
These terms of reference will expire on 15 April 2012.

1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.

2 See the report of the 79th CDDH Bureau meeting, doc. CDDH-BU(2010)001.

3 The CDDH noted that there are also other aspects of the repetitive cases issue that could be examined by the DH-GDR.

4 The CDDH recalled that the earlier work on slow execution was undertaken by a body of “hybrid” composition consisting of DH-PR members and other national experts with practical experience of supervision of the execution of judgments, and with the close involvement of the Department for the Execution of Judgments of the Court (see the terms of reference of the former Group on the execution of judgments of the European Court of Human Rights (GT-DH-PR A), doc. CM/Del/Dec(2007)984/4.1b/appendix 18). The CDDH considered that this format had proved to be useful.

5 See the reports of the 2nd DH-GDR meeting, doc. DH-GDR(2010)002 and of the 3rd DH-GDR meeting, doc. DH-GDR(2010)008.

6 See the report of the 65th DH-PR meeting, doc. DH-PR(2010)002.

7 See the report of the 70th CDDH meeting, doc. CDDH(2010)010.

8 The Chairperson of the DH-PR had also been invited to participate in this meeting but was unable to do so due to transport difficulties.

9 See the report at Appendix II.

10 See the report at Appendix IV.

11 It should be noted that the pilot judgment procedure is based on the Court’s case-law and that the Court is currently working on its incorporation in the Rules of Court.

12 It should be noted that ad hoc terms of reference require the CDDH to submit proposals by 15 April 2012.

13 See doc. CDDH(2008)014 Add. II

14 Namely Recommendations 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(2002)13 on the publication and dissemination in the member States of the text of the ECHR and of the case-law of the ECtHR, Rec(2004)4 on the ECHR in university education and professional training, 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, Rec(2004)6 on the improvement of domestic remedies, Rec(2008)2 on efficient domestic capacity for rapid execution of judgments of the ECtHR and Rec(2010)3 on effective remedies for excessive length of proceedings.

15 It should be noted that the pilot judgment procedure is based on the Court’s case-law and that the Court is currently working on its incorporation in the Rules of Court.

16 It should be noted that ad hoc terms of reference require the CDDH to submit proposals by 15/04/12.

17 In response to a request made by experts, the Secretariat provided the following information concerning this article. It was an original provision of the Statute. Unlike the amending protocol procedure required for amendment of other provisions of the Statute, Article 41(d) had been used on 33 occasions, most often in relation to Article 26 of the Statute, to define the number of seats in the Parliamentary Assembly allocated to the delegation of a new member State following its accession to the Council of Europe. It had also been used in relation to Articles 23, 25, 27 and 34, also concerning the Parliamentary Assembly, and Article 38, concerning financing of the Organisation.



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