29.10.2008
Report on the events organised by the European Court of Human Rights
to commemorate the 10^th anniversary of the the adoption of Protocol
11 to the Convention for the Protection of Human Rights and
Fundamental Freedoms
On 13 October 2008 in Strasbourg, France, the European Court of Human
Rights (the Court) organised two events to commemorate the 10^th
anniversary of the adoption of Protocol 11 to the Convention for the
Protection of Human Rights and Fundamental Freedoms (the Convention).
This protocol reformed the Court into a single court to which
individuals claiming to be victims of a violation of their rights
under the Convention can apply.
The two events were: (1) "Meeting with NGOs and applicants'
representatives" and (2) "Seminar to mark the 10^th anniversary of
entry into force of Protocol No. 11 to the Convention for the
Protection of Human Rights and Fundamental Freedoms."
The chief aim of both events was to stage an open, face-to-face debate
with the judges of the Court and members of the Registry, and also
with the academics. These discussions will enable the Court to take
stock of the Court's activities over the last ten years, without
complacency, so that the Court can contemplate the challenges ahead in
a constructive fashion.
Meeting with NGOs and applicants' representatives
38 representatives of NGOs from 47 member-states of the Council of
Europe (no every member-state was represented, and some countries like
Russia were represented by more then one NGO) took part in the Meeting
with NGOs and applicants' representatives. Among represented NGOs were
international human rights organizations (such as Human Rights Watch,
Amnesty International, Council of Bars and Law Societies of Europe)
and regional (such as Kuridish Human Rights Project (UK), Bulgarian
Lawyers for Human Rights (Bulgaria), Sutyajnik (Russia)). Most of the
regional NGOs were from UK or Eastern European countries. Russian NGOs
had the biggest number of the participants. The European Court of
Human Rights (the Court) was represented by the President of the
Court, Jean-Paul Costa and other judges of the Court, senior members
of the Secretariat of the Courts.
The meeting was in the form of short two presentations by judges of
the Court, two presentations by representatives of NGOs as well as
questions and answers.
The presentations and questions and answers were focused on two main
topics: the evolution of the right to individual petition and the
evolution of the European human rights case-law.
The meeting with the NGOs' representatives was opened by the President
of the Court Jean-Paul Costa who stressed that "the European Court is
on the edge of the brink." The crisis that the Court is experiencing
at the moment is due to the Court's own success, continued the
President of the Court, due to the trust of 800 million Europeans to
bring individual petitions on violations of their rights before the
Court. Another reason which worsens the crisis is the Russian
Federation's refusal to ratify Protocol 14 to the Convention, which
was aimed at reforming the Court to allow it to process individual
applications more speedily. Jean-Paul Costa added: "We will not allow
the rights to individual petition to kill itself." The measures which
are intended to meet the challenges faced by the Court were discussed
at the seminar which followed the meeting with NGOs' representatives.
After the introductory speech by the President of the Court, James A.
Goldston, Director of the Open Society Justice Initiative, and Laurent
Pettiti, President of the Human Rights Committee, Council of Bars and
Law Societies of Europe, gave general overview of the problems of
procedure raised by the NGOs and applicants' representatives.
Judges of the Court Francoise Tulkens and Lech Garlicki addressed
concerns of judges of the Court. Issue raised by the judges concern
the crisis situation of the Court. They will be reflected in the
second part of this report.
The core of the meeting consisted of questions by representatives of
NGOs and answers to the questions by judges of the Court. The
following issues were raised by NGO representatives, which partially
reflected issues previously raised by James Goldston and Laurent
Pettiti:
1. The need for broader access to the Court's case materials on the
Court's web-cite (beyond decisions of admissibility and judgements
on the merits). Erik Friberg, Secretary of the Registry of the
Court, answered that the Court is looking into this issue, there
will be broader access to case materials. However, there shall be
given attention to the demands of the applicant who often do not
want their cases be in the public domain.
2. Short time limit (6 weeks) for submission of third party (by NGOs)
interventions. The time restraint could be partially lifted, was
the reaction of the representative of the Court, but not to the
large extent.
3. Better communication process at the pre-admissibility stage. NGOs'
representatives highlighted the existence of unequal rights of the
governments and representatives of applicants in submitting
communications (memorandums), particularly there is a different
time limit allowed for submissions by the governments and the
applications' representatives.
4. Non-existence of clear criteria for the appointment of public
hearing of cases was mentioned as well as lack of notifications
about the forthcoming hearing.
5. Lack of information on reason for inadmissibility of applications
decided by committees of three judges was mentioned. Participants
were asking whether it is possible to give to applicants reasons
for deciding against admissibility of applications in order to
avoid repetition of mistakes.
6. Possibility of conducting communications with applicants'
representatives by email was raised. It may increase the speed of
the communication process as well as reduce the cost of the
proceedings.
7. Possibility of rendering judgements obliging governments to
publicly express apologies to an applicant for a particular
committed human rights violation was discussed.
Seminar to mark the 10^th anniversary of entry into force of Protocol
No. 11 to the Convention for the Protection of Human Rights and
Fundamental Freedoms
The major topic discussed at the seminar was the much needed reform of
the Court. The President of the Court Jean-Paul Costa started the
meeting with NGO representatives and the seminar with the same massage
- "the Court is on the edge of the brink," reforms are needed.
The problem is that the Court, having become popular among the
Europeans, is forced to deal with a big number of cases
(applications), most of which are inadmissible, or repetitive cases
(so-called clone cases) which could and should be dealt with by
national legal systems. Instead of dealing with major human rights
issues, the Court spends 95% of its time in dealing with
inadmissibility issues and issues that national governments shall deal
with.
Partially Protocol 14 to the Convention was drafted in order to deal
with situation of the case load of the Court. The Protocol 14 is aimed
at improving independence of judges and restructuring the work of the
Court in order to speed up the process of consideration of cases.
However, since December 2006 the promulgation of the Protocol 14 is
blocked by the Russian Federation (Russia is the only country out of
47 member-states of the Council of Europe which did not ratify
Protocol 14). The current concern is that the administration of
justice by the Court has to be reformed in the condition of lack of
Protocol 14 in order to safe the right to individual petition.
A number of measures are considered in order to remedy the situation.
As of today all the cases coming to the Court have equal status. The
Court is looking at establishing principles for filtering applications
coming for consideration of the Court. This work has already started
with reforming the Court's Registry. Special subdivision of the
Registry was created which is responsible for priority consideration
of some cases.
The next step to deal with the excess of cases is to free the Court
from consideration of repetitive indisputable cases (for example,
cases on lack of execution of national court judgements). Such cases
shall be a responsibility of national legal systems.
Another tool that the Court has already started to use is so-called
"pilot judgements." The Court considers only one (first) case of the
kind and the rest similar cases directs to the responsible government
to deal with the problem under the supervision of the Committee of
Ministers of the Council of Europe.
When faced the problem of Russia blocking Protocol 14 which was
supposed to reform the work of the Court, it became obvious that the
procedure of reforming the Court itself shall be changed and made more
flexible. There are suggestions of abandoning Protocols for
introduction of procedural changes and adopting the Statute of the
Court which would incorporate procedural issued. The provisions on
material rights will be left to the Convention and Protocols thereto.
Even if the Protocol 14 had been adopted in time (2006), still the
reform of Protocol 14 would have come late. Even at the time of
ratification process of Protocol 14 the Court needed more radical
reforms, not to say of the today's situation. The solution of the
problem is seen in adopting the Statute of the Court.
The main idea of the Statute is to be able to make changes to the
procedure of the work of the Court without engaging into a complicated
and time consuming process of ratification of protocols to the
Convention. The Committee of Ministers of the Council of Europe will
be introducing changes by way of issuing unanimous resolutions without
introducing each time amendments in the Convention.
In order to save the right to individual petition which in 50 years of
its existence and 10 years of the existence of the "new" Court, the
right to individual petition has to be partially limited by shifting
responsibility in consideration of cases to national legal systems and
by changing the functioning of the Court. It shall be reformed in
order to reflect the need of dealing with the big number of cases
coming before the Court.
October 29, 2008
Anton Burkov
PhD candidate in law
University of Cambridge
ab636@cam.ac.uk
6 documents attached.
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