European Court Reform: Civil Society Excluded from Debate

“The High Level Conference on the Future of the European Court of Human Rights” in Brighton next week would seem too high-level to hear the views of people and NGOs in countries like Ukraine.  This is despite the clear threats which some of the proposed “reforms” pose

James A. Goldston  European Court Reform: Civil Society Excluded from Debate

Next week, all 47 member states of the Council of Europe will convene in the seaside town of Brighton, United Kingdom, at what is being called “The High Level Conference on the Future of the European Court of Human Rights.” The meeting is organized by the United Kingdom, which, as rotating Chair of the Council of Europe from November 2011 through May 2012, is pushing for reform of the Court.

Unfortunately, the list of invitations appears to be so “high level” that virtually the only persons in attendance will be representing governments. Though a few NGOs, most based in London, have been invited, the vast majority of NGOs and other civil society representatives throughout Europe who engage with the Court, sustain it, and depend on it for the defense of human rights have not. Also, the different drafts of the Declaration to be adopted in Brighton have not been officially shared with civil society organizations. It has been therefore more difficult to meaningfully contribute to the negotiations.

Based on publicly available information, there will be no civil society presence at Brighton from Bulgaria, Italy, Romania, Russia, Turkey, Ukraine, or any of the other countries that are principally responsible for the Court’s surging caseload. A discussion about the future of the most important human rights tribunal in the world will thus be confined primarily to government officials. Is there no room for more civil society voices?

Joint Statement: Strengthening the Protection of Human Rights in Europe

The list of signatories and an opportunity to endorse the statement can be found here

Open Society Justice Initiative

STRENGTHENING THE PROTECTION OF HUMAN RIGHTS IN EUROPE: STATES MUST ASSUME THEIR FAIR SHARE OF RESPONSIBILITY

The European system for the protection of fundamental rights and freedoms is one of the most developed in the world. Its crowning achievement, the European Court of Human Rights, is a valuable public resource whose jurisprudence carries global significance. Over the past half century, through rigorous reasoning and interpretation, the Court has established landmark principles which, taken together, give substance to the central promises of a civilized society.

The Court’s very success as an impartial, independent judicial body has prompted more applications – over 150, 000 pending at present – than it can expeditiously process, with current resources. Some suggest that this “crisis” requires changes to the Court’s procedures or limits on its powers.

But the main cause of soaring public demand upon the Court is the failure of national authorities in a number of Council of Europe member states to implement the European Convention on Human Rights and the Court’s own judgments.

Principal responsibility for strengthening the protection of human rights and fundamental freedoms in Europe rests with national governments, who must also accept that their efforts are subject to scrutiny at European level.

In the course of 2011, the Registry introduced numerous measures to carry forward the reforms introduced by Protocol No.14, which entered into force in 2010. As a result, marked progress has been made in reducing the backlog of manifestly inadmissible applications – which constitute more than 90% of the Court’s case docket.

Notwithstanding this progress, several proposals are circulating to address the number of applications pending before the Court by amending the Convention, including to further restrict the criteria for determining which cases are admissible. Unlike the reform process that led to the adoption of Protocol No. 14 there has as yet been no empirical evidence produced of the impact of the proposed reforms on the Court’s efficiency and caseload.

There is a real risk that some of the reforms under consideration will lead to greater delays, restrict the right of individual petition, place the Court in an inappropriate posture of acting as a fourth instance, and provide some governments with greater latitude to avoid their human rights obligations.

In view of the foregoing, the undersigned recommend that the current review of the European human rights system under the UK chairmanship of the Council of Europe refrain from further reform of the Convention and rather focus on three core priorities:

(1) enable, with additional resources as necessary, the Registry and the Committee of Ministers to implement reforms already underway and/or authorized by Protocol No. 14;

(2) improve the national execution of Court judgments and implementation of the Convention more generally, and

(3) enhance the quality and transparency of the processes for national nomination of judicial candidates to serve on the Court.

1. Reform of the Court

Rather than adopt new changes to the Convention, States Parties should invest more resources and political will to enable the reforms already agreed to under Protocol No. 14 to be taken forward. Due deference should be given to the case management expertise within the Registry, and States Parties should avoid inappropriate interference with the operation of the Court by tinkering with peripheral issues. The frequency of inter-governmental conferences on the future of the Court should allow for proper implementation of reforms and analysis of new proposals.

In June 2010, Protocol No.14 allowed for the introduction of numerous reforms to speed up the consideration of cases, including a new single judge formation for dealing with clearly inadmissible cases, applying a new de minimis criterion for admissibility, and the introduction of a filtering section for cases from Russia, Turkey, Romania, Ukraine, and Poland. The new reforms also permitted a three-judge committee to deal with certain well-founded cases, rather than solely the seven-judge chamber previously required.

The Court has also introduced a new procedure to prioritise the most serious cases, and increased the use of friendly settlements and unilateral declarations. These reforms have now taken effect, with what the Committee of Experts for the Reform of the Court of the Committee of Ministers (DH-GDR) has called “a far greater than expected – or hoped for – effect”. During 2011 the Court issued more than 47, 000 decisions. While the most dramatic reforms have dealt with the processing of inadmissible applications, the effect of the new three-judge Committee on well-founded cases has yet to be fully realized. The Court considers that this impact can be further extended during 2012 and the backlog of inadmissible cases can be cleared by 2015 without the need for any further reform .

The Court estimates that it will be able to filter all incoming cases with an additional 23 lawyers at a cost (according to official figures) of approximately €21, 000 per Member State per year. In order to clear the backlog of all inadmissible cases by 2015, the Court would need a total of further 12 seconded lawyers from several countries that generate the most applications. This marked improvement in the output of the Court needs the continued support of the Committee of Ministers:

• Additional Lawyers. Further Registry lawyers are needed to bring the judges to their full capacity. Any lawyers seconded or recruited must meet the necessary standards of competence and independence.

• Financial Resources. Despite a massive increase in workload, the budget of the Court has not significantly increased since at least 2009. The budget is still significantly less than that of many other international courts and tribunals with a far smaller caseload. Fifteen States Parties do not even contribute sufficient funds to pay for their own judges. Registry proposals for additional resources should be given careful consideration.

• Ad Litem Judges. Further judges can only reduce the caseload after the recruitment of more lawyers to prepare cases for them to consider. Any ad litem judges must meet the same criteria for the appointment of a full judge.

• Filtering System. In 2011, the Registry introduced a new filtering unit for applications from the five highest volume states. This new procedure can be further utilized without any further reforms. The results of this work should be reviewed before it is changed again.

• Admissibility. New admissibility rules would infringe upon the right of individual petition, with no evidence presented that they would alleviate the workload of the Court.

• Unilateral Declarations and Friendly Settlements. The use of these tools to settle cases has dramatically increased in the last two years, and should be encouraged where the government admits the human rights violation and guarantees to introduce remedial measures.

2. National Implementation of the Convention and Execution of Judgments

Through Article 46 of the European Convention “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties, ” and agree to empower the Committee of Ministers of the Council of Europe to supervise the execution of the final judgment.

Protocol 14 introduced reforms to this supervisory jurisdiction, authorising the Committee of Ministers to sanction States Parties for non-implementation, and allowing the Committee to refer cases back to the Court. Neither power has yet been used.

Primary Duty to Implement. States Parties are obliged to implement judgments of the Court, whether in a case decided against themselves or decided against another country which nonetheless affects their legal system (res interpretata). Subsidiarity is the concept by which States Parties have the primary responsibility to guarantee the application and implementation of the Convention, through the activities of their governments and the decisions of their national courts, and through prompt implementation of judgments of the Court. Strasbourg retains the supervisory authority to review whether each State is complying with the Convention after the exhaustion of domestic remedies.

Subsidiarity does not mean that Strasbourg must defer to national courts beyond the extent required by the margin of appreciation, a sophisticated doctrine developed through hundreds of judgments of the Court. However, the final decision on the correct interpretation of the Convention must rest with the Court.

Repetitive Violations. A major cause of the current backlog of cases at the ECHR is that governments have failed in their international obligations under the Treaty to implement judgments rapidly and effectively. Approximately 60% of the judgments issued by the Court are repetitive, i.e. the Court has previously found a practice to violate the Convention, but the national government has failed to introduce any change. At the time of the last annual report of April 2011, approximately 10, 000 judgments remained pending unresolved before the Committee of Ministers, 80-85% of which concerned clone or repetitive cases caused by a failure to implement earlier judgments.

Commitment to Rapid and Effective Implementation. In the Interlaken Declaration of February 2010, Member States re-iterated their commitment to “ensure that the rights and freedoms set forth in the Convention are fully secured at the national level” by stressing “that full, effective and rapid execution of the final judgments of the Court is indispensable”. The Izmir Declaration of April 2011 further called on Member States to “co-operate fully with the Committee of Ministers in the framework of the new methods of supervision of execution of judgments of the Court” and required governments to submit national reports on implementation by the end of 2011.

Additional Powers Unused. Despite the widespread failure to implement judgments, the Committee of Ministers has yet to use the additional powers it was granted under Protocol 14 to decide upon the “measures to be taken” to ensure implementation, and by which the Committee may decide, by a two-thirds majority, to bring proceedings to the Grand Chamber against a state for non-compliance, or to request the Court to give an interpretation of a judgment.

The Committee of Ministers is currently considering nearly 10, 000 cases (as of the last Annual Report). The very small staff assigned to support the Committee within the Department for the Execution of Judgments makes it difficult to introduce any further efficiencies. The Committee of Ministers must be encouraged to use its enhanced powers so as to ensure full implementation.

In addition, the Court should be more prescriptive in describing which remedies are appropriate in order to put an end to human rights violations and in what time period. The European Human Rights system will only reach its full potential if all involved take their responsibilities seriously.

Consequently, Member States must make greater investment in implementation of judgments through the following actions:

• Further Resources at the Department for the Execution of Judgments. The body responsible for supporting the Committee of Ministers does not even have one lawyer for each Member State of the Council of Europe, compared with 270 lawyers (out of a total staff of 640) at the Court (and compared with over 1, 900 staff at the Court of Justice of the European Union). Further staff are necessary in order for the Committee of Ministers to adequately consider the cases under their supervision.

• Use the Enhanced Powers introduced by Protocol 14. The Committee of Ministers should fine states for their failure to implement judgments, with the fine to be paid to the Human Rights Trust Fund. The Committee should encourage the Court to issue costs orders against States Parties for the unnecessary expense of considering repetitive cases, to be paid to the Trust Fund. Alternatively, the Committee should refer cases to the Court for non-execution under Article 46, and allow the Court to impose a fine.

• Introduce National Mechanisms for Execution of Judgments. National governments must put in place a transparent government mechanism for ensuring execution of ECHR judgments. Successful models of implementation should be highlighted and recommended. • Improve Protection of Human Rights at Home. The greatest way to improve the strength of the Convention is for national governments to improve the protection of human rights in their own countries, including by: (i) training and capacity-building of their own judiciaries, prosecution services, and the professional bar, (ii) government-funded legal aid for national redress of matters giving rise to Convention violations; and (iii) public information campaigns to raise European Convention awareness among all government officials and the public at large. In addition, governments should increase investments in the Human Rights Trust Fund for projects in non-EU member states to improve the functioning of the Convention at national level. Member States should make a political declaration affirming their commitment to implement ECHR judgments in full.

• Public Review of National Reports on Interlaken. Member States were expected to submit reports on their efforts to implement the Interlaken Declaration by the end of 2011. The consideration of these reports should be a transparent process, with the involvement of the Parliamentary Assembly of the Council of Europe, national parliaments, and Civil Society.

3. Selection of Judges

States Parties must reform national procedures for nominating candidates for selection as Judges of the European Court. Only individuals qualified to hold high judicial office should be proposed for selection. Clear guidelines should be issued as to how national nominating processes should be conducted. These guidelines should require transparency in the process, so that civil society is able to comment meaningfully on the proposed candidates.