Fédération des barreaux d’Europe
Post Interlaken
Post Interlaken
The European Court of Human Rights has to face up to a chronic backlog of work.
Despite having undertaken major efforts to simplify its bureaucratic procedures, it receives far more appeals than it can deal with.
At the moment 120 000 appeals are pending.
The two main reasons for this flood of appeals to reach Strasburg are first the thousands of petitions which are declared inadmissible (more than 90% of appeals) and second the redundant petitions, being the hundred or even thousands of petitions about the same subject (for instance the duration of one State’s judicial procedures).
In its basic form, the present structure of the governing system of the European Convention on Human Rights (ECHR) dates back to the Nineteen-eighties.
Protocol 14 of the European Convention on Human Rights (ECHR), which comes into force on 1st June 2010, includes measures intended to reduce these two principal causes of the backlog facing the Court.
For both categories of petitions, Protocol 14 proposes the adoption of simplified procedures. For petitions which are declared inadmissible, a new filtering system has been planned : a single judge, aided by reporting judges, may declare a petition inadmissible if this can be done without further investigation. As for petitions which are obviously well founded, committees of three judges may, as part of a streamlined procedure, unanimously issue a decree which affirms a breach of the Convention, providing the case may be resolved on the basis of well established jurisprudence at the Court. Up to the present time, committees had power only to declare at unanimity that obviously inadmissible petitions were inadmissible.
Moreover, a new criterion for admissibility will allow the Court to reject insignificant petitions, unless respect for human rights requires an in depth investigation of the petition and providing it does not reject for this reason any case which has not been properly examined by a domestic court.
Other measures do not directly concern procedures in the Court, such as the possibility for the Committee of Ministers to request the Court to interpret a decree or to introduce a procedure in the Court against a State which refuses to conform to the absolute decree in litigation to which it is a party. The Human Rights Commissioner at the Council of Europe finds himself recognising a third party right to intervene before the Court.
As for the judges, they will be henceforth elected for a single nine-year term.
Finally, Protocol 14 expressly provides for the possibility of the European Union adhering to the ECHR, negotiations being currently under way between the Union and the Council of Europe.
As part of its presidency of the Committee of Ministers of the Council of Europe, Switzerland organised a conference of ministers on the 18th and 19th February 2010 at Interlacken, with the aim of resolutely making progress with the reform of the European Court of Human Rights.
It is in fact suffering from a chronic backlog of work. By adopting a common declaration, the representatives of the 47 member States of the Council of Europe have reasserted their determination to guarantee the Court’s future.
Apart from representatives of the 47 member States of the Council of Europe, Mr Thorbjørn Jagland, the General Secretary of the Council of Europe, Mr Jean-Paul Costa, the President of the European Court of Human Rights and Mr Mevlüt Çavusoglu, the President de Parliamentary assembly of the Council of Europe, all took part in the conference. The aim of this conference was to prepare the ground for future work on reforming the Court, which has been achieved by issuing a joint declaration. This document notably aspires to reaching a balance between the number of new appeals and the number of cases treated, and to reduce the number of cases being heard before the Court, currently about 120’000.
Apart from the need to make sure that new appeals are dealt with within a reasonable period, this also implies guaranteeing that the decrees of the Court are better implemented by member States, and in consequence to ensure that their implementation is verified by the Committee of Ministers of the Council of Europe with necessary effectiveness. In order to attain these objectives, the political declaration adopted at Interlaken is part of an action plan which specifies a series of short and medium term measures, and sets the timetable for implementing them. As President Costa reminded us, “The System should be based on complementarity and subsidiarity. Each State guarantees that persons under its jurisdiction benefit from the rights of the Convention, thereby applying it.
It is the responsibility of States to set up effective appeals procedures before domestic, preferably judicial, institutions, as well as to conform to the Court decrees. It is its responsibility to pronounce on complaints after having verified whether they are admissible – especially that all domestic appeal procedures have been tried – and if necessary to state whether or not the Convention has been breached.”
“It is not only petitioners who need a better knowledge and understanding of the Convention system and the criteria for admissibility, but of course their lawyers as well”, as the General Secretary of the Council of Europe emphasised.
The priority is for Court jurisprudence about admissibility and reasonable satisfaction to be clear, coherent and open.
Many participants have also pointed out that if potential petitioners were better informed in a more objective way, there would be fewer inadmissible petitions.
This also depends on the Council of Europe and independent domestic institutions for protecting human rights being able to make a contribution to this inquiry.
Of course this depends on the Court, which frames the decrees and decisions.
But the participating States are also responsible for making the jurisprudence available.
In fact it is their responsibility to have the Convention and the jurisprudence translated for their needs, distributing them and ensuring that information about them is provided, both at universities and as part of the professional training of jurists.
A Committee of experts about the reform of the Court has just been formed, and their work is to be completed by 31st December 2011, including notably State representatives but also some observers : Amnesty International, the International Commission of Jurists, the International Federation of Leagues for the Defence of Human Rights (FIDH), the European Forum for Roma and Travellers, the European Group for national institutions for the promotion and protection of human rights.
This Committee has been instructed to continue debate about a possible reform of the governing system of the ECHR, especially in the light of the conclusions of the Interlaken Conference.
Most bizarrely, lawyers and their representative organisations have not been invited to participate in the committee’s work, although they very often represent petitioners before the Court and may also contribute to finding solutions to problems arising through their experience.
The C.C.B.E has informed the Council of Europe of its wish to be invited to the work of this Committee with observer status.
The CCBE considers that implementing the Convention on a domestic basis is the key point in a solution to current problems. Within this framework, the role of the bar is essential.
Establishing consultation with lawyers about the probability of success for a petition before the Court should be organised by the bar with State help, through legal aid and possibly through surgeries held by volunteer lawyers, which several European bars have already instituted, especially the Paris Bar, for other law disciplines.
Furthermore, when a State chooses a system of legal aid for access to the domestic courts (including in certain States prior to legal proceedings), this system must of necessity be applicable for referral to the European Court of Human Rights.
It is hard to understand how the State can guarantee legal aid for domestic law but not authorise it for referral before an international jurisdiction.
Very vulnerable people’s right to the assistance of a lawyer is an essential part of the right to justice. This assistance provides the means for reducing the number of inadmissible petitions.
In their daily work, lawyers who specialise in Convention law as part of their advisory work dismiss petitions which would be declared inadmissible, but it is necessary that the petitioner with limited financial means should have this legal aid.
At any event, safeguards should be set in place to prevent the Court from increasing the number of criteria for admissibility to limit individuals’ right of access to the Court, and from transforming itself into a Constitutional Court.
The Court has constantly judged that access to a court is a fundamental right, so there is all the more reason for access to an international jurisdiction to defend human rights.
The individual right of appeal is written into the Convention and forms the corner stone of the European system for protecting human rights. A new reform should not place further limitations on this system whose undeniable success is proven.
Laurent Pettiti
President of the Human Rights Committee of the C.C.B.E.
Discours JM Bockel Interlaken
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