Scholarly article on topic 'Crisis Measures of Institutional Reform for the European Court of Human Rights'

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Academic research paper on topic "Crisis Measures of Institutional Reform for the European Court of Human Rights"

Human Rights Law Review 9:4 © The Author [2009]. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org doi:10.1093/hrlr/ngp023 Advance Access publication 12 October 2009

Crisis Measures of Institutional Reform for the European Court of Human Rights

Alastair Mowbray*

The ever increasing difficulties that the European Court of Human Rights ('Court') has faced in handling the remorseless increase in applications being lodged with it has been a topic regularly analysed in this journal. Indeed, the first issue contained an examination of the emerging backlog of cases and President Wildhaber's initial thoughts on institutional reform of the full-time Court.2 In 2007 we noted the Russian Duma's rejection of Protocol 14, thereby preventing Russian ratification of the Protocol.3 Despite repeated public requests from both the political and judicial organs of the Council of Europe the Russian authorities have still not ratified this Protocol, with the conse- t

quence that it has not entered into force even though all the other 46 State s

Parties had ratified the Protocol by the autumn of 2006. In April 2008, the n

Chair of the Legal Affairs and Human Rights Committee of the Council of g

Europe's Parliamentary Assembly Mrs Herta Daubler-Gmelin, wrote to the Head of the Russian delegation to the Assembly referring to the possibility of

parties to a treaty voluntarily applying its provisions on a provisional basis T

prior to the formal entry into force of the treaty.4 She based her letter ,

*Professor of Public Law, University of Nottingham (A.R.Mowbray@nottingham.ac.uk).

1 See, for example, Caflisch, 'The Reform of the European Court of Human Rights: Protocol No. 14 and Beyond', (2006) 6 Human Rights Law Review 403.

2 Mowbray 'European Convention on Human Rights: The 12th Protocol and Recent Cases, (2001) 1 Human Rights Law Review 127.

3 Mowbray 'Faltering Steps on the Path to Reform of the Strasbourg Enforcement System, (2007) 7 Human Rights Law Review 609.

4 Council of Europe, Parliamentary Assembly 'Draft Protocol 14 bis to the Convention for the Protection of Human Rights and Fundamental Freedoms', Report of the Committee on Legal Affairs and Human Rights, 28 April 2009, 11879, at B 11. All Council of Europe documents cited are available at: http://www.coe.int [last accessed 10 September 2009].

Human Rights Law Review 9:4(2009), 647-656

on Article 25 of the Vienna Convention on the Law of Treaties 19695 which provides that:

1. A treaty or part of a treaty is applied provisionally pending its entry into force if:

(a) the treaty itself so provides; or

(b) the negotiating States have in some other manner so agreed.

2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or part of a treaty with respect to a State shall be terminated if that State notifies

the other States between which the treaty is being applied provisionally o

of its intention not to become a party to the treaty. l

In October 2008, President Costa of the Court had a meeting with the B

Committee of Ministers' Liaison Committee during which he mooted the o

'urgent implementation' of some of the procedural reforms contained in cc

Protocol 14 because of the extremely serious situation facing the Court'.6 He /

expressed the view that the introduction of the single-judge formation to deter- .

mine the (in)admissibility of weak applications (Article 6, Protocol 14) and f

empowering the Courts Committees (composed of three Judges) (Article 7, jj

Protocol 14) to admit and determine the merits of repetitive cases could |

increase the Court's efficiency by 20-25%. These reforms could not solve the .

workload crisis, but would be an extremely useful contribution. /

The Committee of Ministers, working through its Deputies, swiftly acted b

upon President Costa's suggestion and during the following month the ff

Deputies asked the Steering Committee on Human Rights (CDDH)7 and the U

Committee of Legal Advisers on Public International Law (CAHDI)8 for their 5.

opinions on the desirability and methods of implementing President Costa's i request. The latter body submitted its opinion on

began by noting that the fastest, simplest way of introducing these procedural > reforms was through all Member States ratifying Protocol 14.10 It also observed

5 1155 UNTS 331.

6 Council of Europe Committee of Ministers, 'Explanatory Report to Protocol 14 bis to the ECHR', 12 May 2009, CM(2009) 58 add final, at para. 3.

7 Composed of one representative, with an expertise in human rights, per Member State. See Terms of reference of the Steering Committee for Human Rights, Committee of Ministers meeting 11-12 February 2009, Appendix 5.

8 Composed of the legal adviser of each Minister of Foreign Affairs of Member States. See: http://www.coe.int/cahdi [last accessed 10 September 2009].

9 Council of Europe Committee of Ministers, 'Guaranteeing the long-term effectiveness of the control system of the European Convention on Human Rights iii. Opinion of the CAHDI (transmitted to the CDDH) on the public international law aspects of the advisability and modalities of inviting the European Court of Human Rights to put into practice certain procedures which are already envisaged to increase the Court's case-processing capacity, in particular the new single judge and committee procedures', 31 March 2009, CM(2009)56 addendum.

10 Ibid, at para.11.

that during the drafting of Protocol 14 the Secretariat had suggested incorporating an Article enabling the provisional application of the Protocol, but, at that time, States had not considered it apposite.11 Now, the Courts Registry did not foresee any technical problems in the creation of single judge-formations and extending the powers of Committees, as contained in Protocol 14.12 CAHDI dismissed the idea that such institutional measures could be introduced via a dynamic interpretation of the European Convention on Human Rights (ECHR) or through changes to the Rules of the Court.13 CAHDI also rejected the suggestion that individual Member States might issue unilateral declarations consenting to the application of these procedural reforms to the determination of applications against them, without an agreement between all the Parties to the ECHR. In the view of CAHDI, States could not waive the application of procedural measures designed to benefit applicants (presumably such as the role of Committees in determining the inadmissibility of individual applications under Article 28 of the ECHR).14

CAHDI advised that there were two options 'fully compatible with the gov-

y 15 r

erning principles of public international law to enable the introduction of .

the specified procedural reforms without all Member States ratifying Protocol f

14. First, a new Protocol authorizing the temporary use of the designated pro- j

cedural measures could be agreed by the Member States, following the estab- |

lished practice of the Committee of Ministers. CADHI recommended that such .

a Protocol should contain clauses allowing for its provisional application /

(when a defined number of States had expressed their agreement) and a R

'sunset' article terminating the Protocol once Protocol 14 was fully ratified.16 g

The second option was a group of the State Parties to Protocol 14 reaching U

an agreement, by consensus, to allow the provisional application of the speci- 5.

fied measures in cases against States that expressed their consent. CAHDI i

believed that as Protocol 14 does not contain an express clause authorizing °

provisional application then, in accordance with Article 25(1)(b) of the Vienna >

Convention, the 'negotiating States' must agree such a development.17 Monaco, Montenegro and the Republic of Serbia were not negotiating States in respect of Protocol 14, as they were not members of the Council of Europe or did not exist in their current form at that time. However, CADHI foresaw no difficulties in enabling them to participate in the agreement process. CAHDI noted that Article 25(1)(b) of the Vienna Convention does not elaborate

11 Ibid, at para. 14.

12 Ibid. at para. 15.

13 Ibid. at para. 18.

14 Ibid. at para. 19.

15 Ibid. at Conclusions, para. 2.

16 Ibid. at para. 20.

17 Ibid, at paras 24-5.

a procedure for negotiating States to reach an agreement on provisional application. It stated:

Accordingly, a decision by consensus and absence of disagreement by any negotiating state would be a legally sound basis for an agreement on provisional application.'18

CAHDI advised that an agreement on the provisional application of Protocol 14 should contain a clause specifying whether it applies to all applications pending before the Court against the relevant State.19 Either of these two solutions would have meant that the Court would have to use two different procedures when determining applications against Member States according to whether they had consented to the reform measures or were still governed by the Protocol 11 process.

CDDH produced its Final Opinion in March 2009.20 It observed that the

Courts backlog was continuing to grow and had reached 102,720 pending

21 t cases in February 2009. Therefore, it supported the swift introduction of the /

two procedural reforms, that is the use of single judge formations and extend- r

ing the powers of the committees as provided for in Protocol 14. Initially f

CDDH had considered the possibility of also recommending the provisional j

application of the new admissibility criteria contained in Protocol 14,22 but it c

concluded that it would be best to focus on the two procedural reforms and s

not seek to introduce the provisional application of changes to substantive rights enshrined in the ECHR.23 Like CAHDI, the CDDH also considered the prompt ratification of Protocol 14 by Russia (not mentioned by name) would be the ideal solution.

[T]his would result in the entire Protocol coming into force between three and four months later, thus greatly reducing any delay; would present no complications under public international law; would avoid any difficulties under the national constitutional law of other State parties p

that have already ratified the Protocol; and would avoid any risks of the 6

18 Ibid. at para. 34.

19 Ibid. at para. 41.

20 However, it was not declassified and published until May 2009. See Council of Europe Committee of Ministers, CDDH, 'Guaranteeing the long-term effectiveness of the European Convention on Human Rights - CDDH final opinion on putting into practice certain procedures envisaged to increase the Court's case-processing capacity', 6 May 2009, CM(2009)51 add.final.

21 Ibid. at para. 5.

22 See Mowbray, Cases and Materials on the European Convention on Human Rights, 2nd edn (Oxford: Oxford University Press, 2007) at 53; and Harris, O'Boyle, Bates and Buckley, Law of the European Convention on Human Rights, 2nd edn (Oxford: Oxford University Press, 2009) at 865-6.

23 Supra n. 20 at para. 7.

Court having to operate two different sets of procedures for two sets

of states.24

In the absence of ratification by Russia, regarding the modalities of securing the provisional application of the specific procedural reforms, CDDH focussed on the two methods examined by CAHDI.

CDDH considered that all the States Parties to the ECHR should reach an agreement to permit the provisional application of the specified procedural reforms by individual States which wished to do so. However, CDDH believed that domestic constitutional requirements would oblige 'most' States to seek parliamentary approval before being able to consent to provisional applica- o

tion.25 As to the option of States agreeing to a new

agreed with CAHDI's view that the new Protocol should contain a clause jj

allowing for its provisional application.27 In the formers opinion if Protocol f

14bis had a low threshold number of ratifications for entry into force then pro- §

visional application would not be necessary. As to the appropriate size of the p

'critical mass' of State ratifications needed CDDH considered that one ratifica- h

tion, as suggested by the Court's Registrar, would have the benefit of enabling O

the speediest introduction of the reforms; two would be the minimum r

number relevant for an international agreement; and three the minimum per- 0

tinent for a multilateral agreement.28 Finally, CDDH observed that the options 3

of States agreeing to allow the provisional application of Protocol 14 or agree- c

ing Protocol 14bis could both be pursued.29 3

After receiving the opinions of CAHDI and CDDH, the Committee of u

Ministers' Rapporteur Group on Human Rights (GR-H) worked on a draft of c

Protocol 14bis. On 21 April 2009 the Chair of the Committee of Ministers' U

Deputies wrote to the President of the Parliamentary Assembly inviting the e

latter body to give its opinion on the draft Protocol 14bis, under the urgent pro- cc

cedure of the Assembly at its forthcoming session. The Assembly's Committee g

on Legal Affairs and Human Rights produced a Report30 which began by p

acknowledging that: 6

... there is widespread agreement, both within the Parliamentary 2

Assembly and the Committee of Ministers that if a temporary, interim solution is not quickly found to help the Court to substantially increase its case-processing capacity, the Court will be in danger of collapsing under the weight of its caseload.... It follows that the Court must

24 Ibid. at para. 12.

25 Ibid. at para. 14.

26 The Concise Oxford English Dictionary, 11th edn (Oxford: Oxford University Press, 2008) defines 'bis' as meaning 'to be repeated' and derives from the Latin literally meaning 'twice'.

27 Supra n. 20 at para. 16.

28 Ibid. at para. 22.

29 Ibid. at para. 19.

30 Supra n. 4.

urgently find a way in which to deal with, in particular, three matters: judges must not spend too much time on obviously inadmissible cases (approximately 95% of all applications), they must deal expeditiously with repetitive cases that concern already clearly established systemic defects within states (this represents approximately 70% of cases dealt with on the merits) and by doing so, concentrate their work on the most important cases and deal with them as quickly as possible.31

The Report, unlike the government-dominated Opinions of CAHDI and CDDH, went on to expressly criticise the Russian Parliament.

The Russian State Duma's attitude on this subject is difficult to comprehend, especially as it's position is totally out of line with that of all the other 46 State Parties to the Convention, including their legislative organs, and even its own Executive.... If it were not for the Russian State Duma's intransigence, we would not have run into the problems we are facing today! So I can only deplore the State Duma's refusal to provide its assent, since December 2006, to the ratification of Protocol No 14 by Russia. By so doing, the State Duma has, in effect, considerably aggravated the situation in which the Court has found itself, and has also deprived persons within the jurisdiction of the Russian Federation from benefitting from a streamlined case-processing procedure before the

Court.32

The draft of Protocol 14bis was endorsed as 'a good interim solution' and the Report only suggested a few technical linguistic changes to the text.

The Parliamentary Assembly debated draft Protocol 14bis on 30 April 2009. The Dutch representative, Mr Kox, expressed the view that Russia was unlikely to ratify Protocol 14 'in the near future'. Nevertheless, he considered that even if Russia was to do so the ECHR system still faced the problem that, until national judicial systems provided effective protection for Convention rights, victims would continue to seek justice at Strasbourg. The French representative, Mr Hunault, noted that the debate was occurring 'because of the blocking tactics of one of the delegations' and that Russian members of the Parliamentary Assembly were not present to participate in the deliberations. The Parliamentary Assembly concluded its debate by approving Opinion 271 with 39 votes in favour and none against or abstaining. The Opinion 'strongly

31 Ibid. at paras B. II. 4 and 6.

32 Ibid. at para. 10.

33 Ibid. at para. 17.

34 Such as the replacement of 'Parties' with 'the High Contracting Parties': see ibid. at para. 20.

35 Council of Europe Parliamentary Assembly 'Draft Protocol No. 14 bis to the Convention for the Protection of Human Rights and Fundamental Freedoms', 30 April 2009, Opinion No. 271 (2009).

deplore[s]d' the Russian Duma's stance on Protocol 14 and supported the introduction of Protocol Ibis as a temporary resolution of the problem.36

After considering the Parliamentary Assembly's Opinion, the Ministers' Deputies agreed, on 6 May 2009, the text of draft Protocol 14bis. This text contains (Article 4) the single-judge formation and the extended powers of the Courts Committees provided for in Protocol 14, and also incorporates the linguistic changes recommended by the Assembly. The draft was then transmitted to the Committee of Ministers. At the 119th Session of the Committee of Ministers, held in Madrid on 12 May 2009, the High Contracting Parties to the ECHR organized a separate Conference. During that gathering the Member States adopted Protocol 14bis.37 They also agreed by consensus38 that parties to Protocol 14 could consent to the provisional application of the single-judge formation and extended powers of Committees to cases brought against them. So both strategies endorsed by CAHDI were given effect by the Member States. However, the Minsters formally

noted that in spite of the efforts undertaken by all member states as col- ??

lective guarantors of the Convention, the conditions for the entry into О

force of Protocol No. 14 have still not been met. The Ministers recalled °

their position on the issue expressed at their 118th Session in May 2008, О

stressing in particular that the entry into force of Protocol No. 14 should 3

remain the first priority of the States Parties to the ECHR.39 О

The Georgian Delegation issued a position paper which, inter alia, took issue g

with these comments: 'Perhaps, too straightforward approach [sic] may not be t

productive, but I fear that excessive moderation chosen for the Statement will s not solve the issue

either.'40 We

may speculate that given the military conflict П

between Georgia and Russia in the summer of 2008 and the subsequent initia- ?

tion of large-scale litigation before the Court over the matter the Georgian §

government felt less tolerant of the Russian response to Protocol 14 than §

36 Ibid. at paras 4 and 6. 6

37 See Protocol No. 14bis to the Convention for the Protection of Human Rights and 2 Fundamental Freedoms 2009, available at: http://conventions.coe.int/Treaty/EN/Treaties/ 1 html/204.htm [last accessed 10 September 2009]. ^

38 Subject to the absence of opposition by 31 May 2009 of any High Contracting Party not present at the Conference. See Council of Europe Committee of Ministers, 'Statement by the Committee of Ministers on the Conference of the High Contracting Parties to the ECHR', Madrid, 12 May 2009', CM(2009)60final. No formal objection was subsequently made.

39 Ibid. [emphasis added]

40 Position paper of the Georgian Delegation for the 119th Session of the Committee of Ministers, 12 May 2009, DD(2009)273.

41 In October 2008 the Court's Registrar issued a press release disclosing that 2,729 applications from South Ossetians had been lodged against Georgia in respect of its military activities during August 2008 and Georgia had initiated an inter-state complaint against the Russian Federation concerning the conflict. See Press release issued by the Registrar, '2,700 applications received by the Court from South Ossetians against Georgia, 10 October 2008, available at: http://www.echr.coe.int/HUDOC [last accessed 10 September 2009]. Georgia has also initiated proceedings against Russia before the International Court of Justice alleging

other Member States. Indeed, we have seen above how the Parliamentary Assembly expressly criticized the Duma. Presumably, the Ministers adopted a more diplomatic stance in order to both facilitate the Russian government not objecting to the Conferences dual provisional measures strategy whilst also seeking to avoid inflaming the Duma's anti-ECHR attitude.

Turning to the substance of Protocol 14bis, the roles and functions of single-judge formations and the extended powers of Committee have been analysed in a previous issue of the Review42 so we shall not repeat ourselves. Interestingly, the final text of Protocol 14bis discloses that the Member States rejected the view of CDDH that it was not necessary to incorporate a clause enabling States to authorise the provisional application of the Protocol to them. Article 7 provides:

Pending the entry into force of this Protocol according to the conditions set under Article 6, a High Contracting Party to the Convention having signed or ratified the Protocol may, at any moment, declare that the pro- p

visions of this Protocol shall apply to it on a provisional basis. Such a dec- r

laration shall take effect on the first day of the month following the date o

of its receipt by the Secretary General of the Council of Europe.43 r

The Explanatory Report justified the inclusion of this 'opt in' so as to 'facilitate |

the earliest possible application of the Protocol with respect to the largest .

possible number of High Contracting Parties, since domestic procedures prior /

to expression of consent to be bound may be lengthy'.44 Under Article 6 of S

Protocol 14bis three High Contracting Parties have to ratify (or sign without g

reservation as to ratification) the Protocol for it to enter into force. This is the I

lowest number of ratifications appropriate for a multilateral treaty according g.

to the CDDH Opinion we examined previously. The Explanatory Report g

described this threshold as being 'very low ... in order to allow the protocol to 0

enter into force as quickly as possible.' Under Article 8 of the Protocol when ^

either the Protocol enters into force or it becomes provisionally applicable to a High Contracting Party then all applications pending before the Court against the relevant State(s) will be determined in accordance with the new procedures. Finally, Article 9 provides that when Protocol 14 enters into force Protocol 14bis will cease to be in force or be applied on a provisional basis (if the minimum number of ratifications had not been achieved).

breaches of the International Convention on the Elimination of All Forms of Racial Discrimination: see ICJ Press Release 2008/23, 12 August 2008, available at: http://www.icj-cij.org/docket/fiIes/140/14659.pdf [last accessed 10 September 2009].

42 Mowbray, 'Protocol 14 to the European Convention on Human Rights and Recent Strasbourg Cases', (2004) 4 Human Rights Law Review 331.

43 Council of Europe Committee of Ministers, Protocol No. 14 bis to the European Convention on Human Rights, 12 May 2009, CM(2009)58finaI.

44 Supra n. 6 at para. 23.

45 Ibid. at para. 22.

The ExpIanatory Report notes that such a deveIopment wiII make no difference to those States whose cases have been determined in accordance with Protocol 14bis.

Protocol 14bis was formally opened for signature on 27 May 2009 and on the same day President Costa, who had pIayed a Ieading roIe in stimuIating the creation of the Protocol, publically 'thanked the Member States that had worked hard to make this ProtocoI possibIe, thereby showing their attachment to the protection mechanism enshrined in the ECHR'.46 Both Denmark and Norway ratified the Protocol on that day too. Subsequently, on 17 June 2009, Ireland also ratified the Protocol. Therefore, Protocol 14bis will enter into force on 1 October 2009. Furthermore, Norway made a decIaration, under Article 7 of Protocol 14bis, on 25 May, so cases pending or brought against that State from 1 June 2009 are being determined by the new processes. Denmark Iikewise made a simiIar decIaration on 3 June so that cases against it have been considered under the new arrangements since 1 JuIy 2009.

Regarding the other provisionaI appIication option agreed at the Madrid Conference, Switzerland, on that day, made a declaration that it would accept the provisionaI appIication of the identicaI reforms under ProtocoI 14 to be appIied to cases pending or brought against it from 1 June 2009. Germany made a simiIar decIaration on 29 May, which aIso came into effect on 1 June. The Netherlands, Luxembourg and the United Kingdom issued declarations in June, which became effective on 1 JuIy.47 So, two years after the Court hoped that Protocol 14 would be fully in force, the single-judge formations and extended powers of Committees have begun to become operational in respect gg

of an expanding minority of States. The first decisions taken by single-judge I

formation (involving the United Kingdom, Germany, the Netherlands and i

Denmark) were made on 7 July 2009.48 It s

matic and legal effort has had to be expended to partially circumvent the S

Russian Dumas blocking of Protocol 14. However, the willingness of the A

Member States, without the Russian Government lodging a formal objection, U

to utilise innovative techniques (for example, there has previously never been 2

a bis Protocol created under the ECHR system) in order to enable crucial insti- 5

tutionaI reforms to be impIemented by the Court must be weIcomed. The two provisionaI appIication strategies, agreed at the Madrid Conference, demonstrate that the Member States do genuineIy support the need to empower the Court to re-organise its methods of processing the torrent of compIaints

46 Press release issued by the Registrar, 'President Costa welcomes the opening for signature of Protocol 14 bis', 27 May 2009.

47 DetaiIs of the formaIities governing the making of these decIarations and the dates of individ-uaI decIarations are avaiIabIe from the CounciI of Europe Treaty website, ProtocoI 14, Agreement on the provisionaI appIication of certain provisions of ProtocoI 14 pending its entry into force, avaiIabIe at: http://conventions.coe.int [Iast accessed 10 September 2009].

48 Press release issued by the Registrar, 'New procedures produce first decisions 146 Single Judge decisions adopted', 10 July 2009.

flowing to Strasbourg. Furthermore, the rapid action of several States in ratifying Protocol 14bis or making declarations of provisional application under Protocol 14 provides additional evidence of real commitment to the ECHR system. It is to be hoped that the remaining governments will be inspired to authorise the application of the single-judge/extended powers Committees processes to complaints against their States via whichever strategy involves the least delay to comply with their constitutional obligations. Then the next major challenge for States will be responding to President Costa's call for a conference to be held in 2010:

The idea is for the States, guarantors of human rights, to give human o

rights protection a second wind. That would help to express support for n

the Court and to pump new life into this fifty-year-old by offering it

cure of youthfulness.49 f

We will no doubt be analysing how this proposal develops in future issues of 3

the Review. p

49 Speech given at the opening of the judicial year, 30 January 2009, at 7, available at: http://www.echr.coe.int/NR/rdonlyres/241F38A0-1469-4737-B319-F6632E755E3C/0/ 30012009President CostaHearing_eng_.pdf [last accessed 20 August 2009].