21 January 2010
The future of
the Strasbourg Court and enforcement of ECHR standards: reflections on the
Interlaken process
Conclusions of
the Chairperson, Mrs Herta Däubler-Gmelin,
of the hearing held in Paris on 16 December 2009
1. These
conclusions are presented under four distinct headings, to reflect the manner
in which the hearing was organised, even though such a sub-division is somewhat
artificial. The conclusions are not a verbatim record or a detailed overview of all issues raised
at the hearing. Instead, I have decided to focus on what I perceive to be the
most important points raised in discussions (and in documents made available to
Committee members).
I. The
context: Interlaken Conference to
be held on 18-19 February 2010
2. Why
did I propose to the Committee a hearing on this subject? There were two
reasons for this. It struck me as rather odd that the Assembly had not been
involved in any of the substantive discussions or in meetings leading up to the
conference. Also, it appeared to me that the title of the conference – “The
Future of the European Court of Human Rights” – was too narrowly circumscribed, suggesting that
problems facing the Court should be our primary concern. Our hearing dispelled
this misunderstanding: the conference must also urgently address domestic
(non-)implementation of Convention standards and determine how best to ensure
prompt and full compliance with Strasbourg Court judgments – as our best
hope to help stem the flood of applications submerging the Court.
3. When
circulating the draft Interlaken Declaration, the Swiss authorities specified
that the declaration should pursue three objectives: (i) reaffirm a commitment
to the ECHR system (including the right of individual application), (ii)
express support for the Strasbourg Court to act autonomously in its initiatives
to increase its own efficiency, and (iii) put on track in-depth reform to
guarantee the long-term efficiency of the system of individual complaint. This
Declaration, together with an eight-point Action Plan, is presently the object
of consultations with member states (draft text available on the Committee of
Ministers’ Chairmanship website www.interlakenconf.admin.ch).
But how, and exactly upon whose authority, and in whose name, have these
priorities been established and would they be implemented? I note, in this
connection that – as yet – the potentially key role of national
legislative organs and of the Assembly is not alluded to.
4. The
Swiss authorities must be commended for their initiative. But do member states,
at ministerial level, have the courage to “bite the bullet” to confront the
real human rights issues and problems facing member states and the Council of
Europe? We are all fully aware
that:
·
the
Strasbourg Court is not equipped to deal with large scale abuses of human
rights (why has the Committee of Ministers not made vigorous use of its 1994
Declaration on Compliance with Commitments?; ditto the Assembly, in refocusing its monitoring
priorities?);
·
a number of
the Court’s main “clients” have made no serious effort to put into effect the
2000- 2004 reform package (will ministers take upon themselves the
responsibility to ‘name and shame’ states that have put into jeopardy the
existence of the ECHR system?), and
·
considering
that the Court is financed through the Council of Europe’s budget, state
contributions are totally inadequate, not to say pathetic (several states’
contributions to the Council of Europe’s budget do not even cover – or
only barely – the salary of a single judge on the Court!).
II. The
authority and effectiveness of the ECHR: need for a renewed impetus
5. The
authority of the Strasbourg Court is contingent on the stature of judges and
the quality and coherence of the Court’s case-law, which certain states have
put into question. The most eminent jurists in member states with relevant
experience should be encouraged to leave flourishing national careers,
preferably in their late 40s, 50s and early 60s, to serve in Strasbourg. When
national selection procedures are inadequate, the Assembly’s hands are tied;
often candidates are good, but not outstanding. If the findings of the Strasbourg
Court are to be recognised as authoritative by their peers at the domestic
level, the Assembly must be in a position to elect top quality judges.
6. The
sheer volume of applications needing attention in Strasbourg has led to
unacceptable delays which prevent judges from concentrating on their principal
judicial task in dealing with cases that merit priority consideration. In this
sense, quality and effectiveness are jeopardised by workload. The Strasbourg
Court’s Registrar provided us with alarming statistics. By the end of 2009, the Court will have
received almost 57,000 new applications, an increase of 14%. On the side of
output, the Court will have rendered judgment in more than 2,000 cases, an
increase of more than 20% compared to 2008. But the backlog has reached almost
120,000, with a deficit of 1,800 applications every month. When analysing the
Court’s problems, we were informed that a small number of states dominate the
Strasbourg Court’s backlog: Russia represents nearly 28%, Turkey 11%, Ukraine
8.6% and Romania 8.3%. These four states together represent roughly 57% of the
backlog. If one takes the ten high case-count states, the backlog comes to 77%
(adding Italy, Poland, Georgia, Moldova, Slovenia and Serbia). Indeed, in 2008,
86% of the Court’s judgments (1,543 in total) concerned just 12 states.
7. Another
factor to be taken into account is the very high number of repetitive
applications before the Court, deriving from the same structural problems at
the domestic level, some of which have remained unresolved for many years. Over
half of the judgments concern repetitive applications. The registrar estimated
that there are probably about 20,000 such cases in the Court’s backlog. In 2008
70% of the Court’s judgments concerned breaches of the Convention in repetitive
or clone cases.
8. To
these statistics can be added information about late (and non-)execution of
Strasbourg Court judgments. The number of cases pending before the Committee of
Ministers at the end of 2000 was 2,298, while the equivalent figure for 2009
was 8,614, of which 80% concern repetitive cases. This too, is unacceptable.
9. Simply
put, the Convention system in Strasbourg is in danger of asphyxiation:
·
it is
impossible for the Court to render justice to all individuals (as recognised by
the existence of committee and single-judge procedures, a ‘fig-leaf’ that
maintains the legal fiction of a judicial determination of all applications);
·
it is totally
absurd for the Court and its staff to waste time and effort in dealing with repetitive applications
(surely old democracies, like Italy, not to mention more recent ‘persistent
defaulters’ such as Moldova, Poland, Romania, Russia and Ukraine, ought to be
subjected to “aggravated”, if not “punitive” or “exemplary”, damages)
·
failure
of many states to provide appropriate effect to their Convention obligations,
haphazard implementation of the 2000-2004 reform package and unacceptable
delays in full execution of Strasbourg Court judgments (what prevents national
parliaments and the Assembly from summoning ministers to account for this at
“hearings” in full view of the media, and for the Committee of Ministers to
bring “infringement proceedings” against recalcitrant states with respect to
non-execution?)
10. The
root causes of the Court’s workload and increasing backlog have to be
eliminated. All meritorious cases, even if mostly repetitive, must be dealt
with by the Strasbourg Court. There are no easy solutions, and in this respect
reference can be made to ideas mooted, in particular, in the CDDH Opinion and
by the Secretary General in their contributions to the Interlaken Conference.
But should we embark, already now, on yet another major (internal) reform of
the Strasbourg Court? Is there an
imperative necessity to create within the Court an additional judicial
filtering body, as advocated by the German authorities and others? Why cannot
this be done by a “chambre des requêtes” composed of (a rotating pool of) existing
judges? Could not such work be undertaken by ad litem judges taken from within the
Court’s registry and/or states’ judicial corps? Should we not wait to see how
the “pilot judgment” procedure develops? And what about the introduction of the
system of “astreintes” (a fine for delay in performance of a legal obligation)
to be imposed on states that persistently fail to comply with Court judgments
(see Assembly Opinion No.251 (2004), paragraph 5)? Could one not consider, for
example, the utility of imposing a small court fee to discourage potentially
hopeless applications being addressed to Strasbourg?
11. There exist no miracle solutions to the difficulties
confronting the Strasbourg Court if we are to maintain its dual role of
ensuring common European human rights standards and individual supervision and
adjudication. Tinkering with such controversial issues as the compulsory use of
the Court’s official languages or compulsory representation by a lawyer might
simply divert precious time and energy from other essential work.
III. The authority and effectiveness of the ECHR: need for prompt and
full implementation of the Court’s judgments
IV. The authority and
effectiveness of the ECHR at the national level: stemming the flood of applications
12. These two
subjects were dealt together at the hearing; both touch upon issues in relation
to which we parliamentarians – in our dual capacity as national
legislators and members of the Assembly – have a crucial role to play.
They also concern the “principle of subsidiarity”, in that states have primary
responsibility to prevent human rights violations and to remedy them when they
occur.
13. National parliaments
can and should ensure the compatibility of draft laws, existing legislation and
administrative practice with Convention standards, and in particular possess “specific
mechanisms and procedures for effective parliamentary oversight of the
implementation of the Court’s judgments on the basis of regular reports by the
responsible ministries” (Assembly
Resolution 1516 (2006), paragraph 22.1). For present purposes suffice to recall
work we have been undertaking on this subject since 2000, the hearing we had in
November 2009 on “parliamentary scrutiny of ECHR standards” (highlighting the
effectiveness of parliamentary procedures in the United Kingdom and in the
Netherlands), and the fact that too few parliaments have, to date, set up
appropriate oversight mechanisms to ensure the rapid and effective
implementation of Strasbourg Court judgments.
14. The
Strasbourg supervisory mechanism is “subsidiary” in nature. States are
responsible for the effective implementation of the Convention and it is the
shared duty of all state organs (the executive, the courts and the legislature)
to prevent or remedy human rights violations at the national level. This is
principally, but not exclusively, the responsibility of the judiciary. Hence
the logic of putting into place an effective human rights complaints mechanism at the national level,
which would diminish the risk of the Strasbourg Court acting as a fourth
instance appellate jurisdiction. Witness the small amount of complaints,
comparatively speaking, that reach the Strasbourg Court from Spain and
Germany. Appropriate domestic
remedies, intensive training of lawyers, prosecutors and judges, the creation
of a human rights culture and the impregnation of the Strasbourg acquis within national state structures – especially with respect to the “big sinners” (see
paragraphs 6 to 8 above) – would help stem the flood of applications to
the Court. Thus, well-functioning national human rights protection mechanisms
might make superfluous the idea of creating a separate filtering body within
the Strasbourg Court and shift back primary responsibility to national legal
systems, where it belongs.
15. One
subject of particular significance, discussed at the hearing, was the need to
enhance the authority and direct application of the Strasbourg Court’s findings
in domestic law. Rather than refer to the erga omnes effect of Grand Chamber judgments of
principle, it is probably more accurate to refer to its interpretative
authority (res interpretata) within the legal orders of states other than the respondent state in a
given case. Here, I have in mind the United Kingdom’s 1998 Human Rights Act,
Section 2 § 1 of which specifies that national courts “must take into
account” Strasbourg Court
judgments, and Article 17 of Ukrainian Law No.3477–IV of 2006, which
reads: “Courts shall apply the Convention [ECHR] and the case-law of the [Strasbourg]
Court as a source of law”.
This subject merits special attention in Interlaken.
16. The Council of Europe and its member states must
do their utmost to solve a number of – often very serious – human
rights problems in a handful of recalcitrant states. Rather than concentrate
time, energy and money on reform (primarily) within the Court, is it not better
to await, as proposed by the Group of Wise Persons in 2006, the effects of
Protocol No.14 (which is to improve the Court’s efficiency by 25%), and place
greater emphasis on the implementation of the 2000-2004 reform package? I
believe that I reflect the majority view of the Committee when citing the CDDH
position on this subject:
“In order to ensure the
long-term effectiveness of the Convention system, the principle of
subsidiarity must be fully operational. This should be the central aim of the
Interlaken Conference” (CDDH Opinion, § 9, my underlining).
*****
17. As this is my last
contribution to the work of the Parliamentary Assembly, I allow myself one
final observation, namely the need for the rapid accession of the European
Union to the European Convention on Human Rights. This would guarantee a
coherent Europe-wide system of human-rights protection, reinforce legal
certainty and provide greater protection of individuals’ rights. The Treaty of
Lisbon assures a legal basis for EU accession, and the imminent entry into
force of Protocol No.14 to the Convention will provide the legal basis on the
Strasbourg side.
18. Then, rather than enter into
an institutional agreement – entailing many years of negotiation –, a
“memorandum of understanding” could be quite quickly agreed between the EU and
ECHR states parties by mid-2010, and accession foreseen soon afterwards (with
practical details as to the participation of the EU in the Convention system
being settled separately in parallel). If we are not inventive in deciding how
best to deal with EU accession to the Convention, we will be confronted with the
prospect of a long, protracted process of 47 individual ratifications on the
Council of Europe side.
APPENDIX I
Programme of
the hearing
I. The
context: Interlaken Conference to
be held on 18-19 February 2010
·
Mr Paul
Widmer, Ambassador and
Permanent Representative of Switzerland to the Council of Europe (Strasbourg )
·
Mrs Deniz
Akçay Chairperson of Council
of Europe Steering Committee for Human Rights (CDDH)
·
Mr Erik
Fribergh, Registrar,
European Court of Human Rights (Strasbourg)
II. The authority and
effectiveness of the ECHR: need for a renewed impetus
·
Mr
Pierre-Henri Imbert,
former Director General of Human Rights at the Council of Europe (Strasbourg)
·
Mr Rick
Lawson, Professor of Human
Rights at the University of Leiden (Netherlands)
III. The authority and
effectiveness of the ECHR: need for prompt and full implementation of the
Court’s judgments
·
Mr Philip
Leach, Solicitor, Director
of the European Human Rights Advocacy Centre (London)
·
Mr Iurii
Zaitsev, Ukrainian
Government Agent before the European Court of Human Rights, former Chair of the
Ukrainian Legal Foundation
IV. The authority and effectiveness of the ECHR
at the national level: stemming
the flood of applications
·
Mr Mark
Entin, Professor and
Director of the Institute of European Law at the Moscow State Institute of
International Relations
·
Mr Jens
Mayer-Ladewig, former
German Government Agent before the European Court of Human Rights
·
Mr Andrzej
Rzeplinski, Judge on the
Polish Constitutional Court
APPENDIX II
Background
documents (a selection)
i. For
Interlaken:
·
Provisional
Programme of High Level Conference on the Future of the European Court of Human
Rights on 18 and 19 February 2010, Interlaken, Switzerland, available on the
Committee of Ministers’ Chairmanship website: www.interlakenconf.admin.ch
·
Draft
Declaration - Interlaken Ministerial Conference – 11 December 2009,
available on the Committee of Ministers’ Chairmanship website: www.interlakenconf.admin.ch
·
Memorandum
of the President of the European Court of Human Rights to states with a view to
preparing the Interlaken Conference – 3 July 2009, available on the
Court’s website: http://www.echr.coe.int/ECHR/homepage_en
·
Contribution
of the Secretary General of the Council of Europe to the preparation of the
Interlaken Ministerial Conference – 18 December 2008 - Doc. SG/Inf (2009)
20.
·
Prevention of
human rights violations is necessary through systematic implementation of
existing standards at national level. Memorandum of the Commissioner for Human
Rights in view of the High-Level Conference on the Future of the European Court
of Human Rights – 7 December 2009.
Doc. CommDH (2009) 38
rev, available on the Commissioner’s website: http://www.coe.int/t/commissioner/default_EN.asp
·
Opinion on
the issues to be covered at the Interlaken Conference. Steering Committee for
Human Rights (CDDH) – 1 December 2009 - Doc.
CDDH (2009) 019 Addendum I, available on the CDDH’s website: http://www.coe.int/T/E/Human_rights/cddh/
ii. Working
documents of the Assembly’s Committee on Legal Affairs and Human Rights:
·
Parliamentary
scrutiny of standards of the European Convention on Human Rights. Background
document. Doc.
AS/Jur/Inf (2009) 02 – 16 October 2009, available on the Committee’s
PACE website: http://assembly.coe.int/default.asp
·
Implementation
of judgments of the European Court of Human Rights. Progress report. Rapporteur Mr
Pourgourides - 31 August 2009. Doc.AS/Jur
(2009) 36 and addendum,
available on the Committee’s
PACE website: http://assembly.coe.int/default.asp
·
Guaranteeing
the authority and effectiveness of the European Convention on Human Rights.
Outline report. Rapporteur: Mrs Bemelmans Videc – Doc AS/Jur (2008) 07
– 21 February 2008
·
Minutes from
two hearings of the AS/Jur held in Paris on 16 November 2009 ((“Parliamentary
scrutiny of ECHR standards”) and on 16 December 2009 (”The future of the
Strasbourg Court and reinforcement
of ECHR standards”)
iii. Other
background documents:
·
Opinion. On
Reform of the European Court of Human Rights. P. Leach, European Human
Rights Law Review (2009),
pp.725-735
·
Bringing
rights home or how to deal with repetitive applications in the future.
Contribution of Erik Fribergh, Registrar, European Court of Human Rights, to
Round Table held in Bled, Slovenia, on ways of protecting the right to a
trial within a reasonable time – countries’ experiences – and
short-term reform of the European Court of Human Rights. – 21-22 September 2009, available on the
Court’s website: http://www.echr.coe.int/ECHR/homepage_en
·
Council of
Europe publication Reforming the European Convention on Human Rights. Work
in Progress (April 2009, 718
pages, a compilation of publications and documents relevant to the ongoing
reform of the ECHR, prepared by the CDDH)