International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Winter 2010 Issue

 

 

 

 

 

Judicial Reform Report

 

The Challenges Facing the European Court of Human Rights[i]

Michael O’BoyleBy: Michael O’Boyle, Deputy Registrar of the European Court of Human Rights

The European Convention on Human Rights was drafted by the member states of the Council of Europe following the end of the second-world war and as a reaction to the barbarities committed during that conflict.  It represented the first step towards the collective enforcement of certain of the rights set out in the seminal United Nations Universal Declaration of Human Rights.  The Convention owes its existence to the simple truth set out in the Preamble to the Universal Declaration:  “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”  The international community recognised that there was a need to create an international tribunal of human rights to which the individual could have access in order to highlight breaches of fundamental rights wherever they occurred.  By creating a right for persons to bring complaints against states – a right of individual petition – the European states embarked upon an unprecedented judicial experiment that lies at the root of the remarkable achievements of the European Court of Human Rights.

The Convention came into force in 1953.  Enforcement of the Convention was entrusted to a Commission (set up in 1954) and a Court (set up in 1959).  Both institutions were merged into a single permanent European Court of Human Rights in 1998.  It has its headquarters in Strasbourg, France.  Forty-seven states (each with its own judge) – covering a population of more than 800 million – have ratified the Convention and accepted an obligation to observe the human rights obligations set out in the treaty.  The Court is composed of 47 independent judges elected by the Parliamentary Assembly of the Council of Europe.  They sit in five Sections of the Court and decide on issues of admissibility and the merits of complaints brought before it.  A Grand Chamber, composed of seventeen judges, and the Court’s most authoritative formation - ensures the consistency of the case law in the Court and deals with the most important cases.  The Grand Chamber can be seised by the parties following a Section judgment or the Section may decide, given the importance or difficulty of the case, to relinquish jurisdiction to it.  Judgments of the Court are binding on the states concerned pursuant to Article 46 of the ECHR, and the Court is empowered to award damages against states found to have violated the Convention.  The Committee of Ministers of the Council of Europe  - composed in practice of the Permanent Representatives of the member states – are responsible for ensuring that states give effect to the judgments against them by way of individual measures (e.g. compensation/restoration of property/retrial) and/or general measures (e.g. changes in legislation or administrative practices).  The Court may indicate to the state what measures it should take – for example, to release a person whose detention has been determined to be unlawful - but, subject to a few exceptions, it is generally left to the state to decide how to give effect to the Court’s judgment subject to the supervision of the Committee of Ministers assisted by an Execution of Judgments department.  The Court is, however, empowered to order binding interim measures in the course of litigation when it is necessary to prevent irretrievable harm occurring to an applicant.  This mostly occurs in cases concerning the removal of a person to a country where it is alleged he will be subjected to torture or to inhuman and degrading treatment.

The Court can receive applications by one contracting party against another – the inter-state complaint.  These have been rare.  Prominent examples are the case brought by Ireland against the United Kingdom in the 1970’s relating to security measures in Northern Ireland and four cases brought by Cyprus against Turkey over the situation in the northern part of Cyprus.  Two inter-state cases brought by Georgia against Russia are currently pending before the Court. 

It has been the right of individual petition - which applies to natural and legal persons, groups of individuals and NGO’S - that has been the most successful feature of the system and that is at the root of its growth and development over the last 50 years.  This confers on individuals who can claim to be victims of a violation of their rights under the Convention the right to bring a complaint to the Court – provided that basic conditions of admissibility have been satisfied:  for example, that they have first sought to obtain a national remedy beforehand (the rule of exhaustion of domestic remedies) and that their complaint has been brought in a timely manner (the six month rule).  Since 1955 more than 250,000 individual complaints have been examined concerning a wide variety of states - 90% of which have been declared inadmissible.  The Court has given 12,000 judgments.  Through many landmark judgments touching on virtually every aspect of law – fair trial, the right to liberty, habeas corpus, use of lethal force by the security forces, torture, free elections, freedom of expression and association, the right to form and join trade unions, freedom of religion – to give but a few examples – the Court has forged a corpus of human rights law which has had a major influence on legal development in Europe and beyond.  Such is the scope, breadth and influence of the case law that the Convention can no longer be described as a simple human rights oversight mechanism.  It has become over time, as its norms have been received into the national law and practice of 47 states, a “constitutional instrument of European public order” - to use the Court’s own description.  While the Court’s judgments are only binding on the respondent state, many of the Court’s leading judgments have an erga omnes effect and will be taken into account by the states in the process of law reform.  Thus, when the Court determined in its Hirst v United Kingdom judgment that a blanket prohibition on a prisoner’s right to vote was not compatible with the Convention provision concerning the right to free elections, the resulting principles contained in the judgment should ideally be taken into account in the laws of all the Contracting Parties for their legal arrangements in this area to be compatible with Convention law.

The role played by the Convention in eastern and central Europe post-1989 has been a major one.  The influence of the Convention is evident in the constitutions of many of the new democracies and in their civil and criminal codes.  It has been noted by the Wise Persons Group – set up to consider reform of the ECHR – that the accession to the Convention of the central and eastern European democracies has contributed to stability in the whole of Europe through the consolidation of democratic standards.

The Court’s influence also goes beyond the boundaries of Europe.  Its case law will be studied by United Nations bodies and other regional international human rights bodies such as the Inter-American Commission and Court of Human Rights.  Constitutional and Supreme Courts throughout the world, but especially those responsible for the interpretation of constitutions based on the Convention, will look to Strasbourg jurisprudence for guidance in the adjudication of human rights issues.  The superior courts inter alia of Australia, Canada, New Zealand, Namibia, Hong Kong and South Africa have all paid heed to judgments of the Court when interpreting their national bills of rights.  On a few occasions the United States Supreme Court has cited leading judgments of the European Court although it has been “rapped on the knuckles” in some quarters for doing so.

In designating the Court as a recipient in 2010 of the Four Freedoms Medal, the Trustees of the Franklin and Eleanor Roosevelt Institute note “ that the Court has delivered more than [10,000] judgments during this half-century.  Its opinions have won the respect and support of the governments of the member states but even more and perhaps equally important is the fact that the people of Europe have found the Court to be a fair, honourable and powerful instrument of justice on their behalf.  The Court represents a precedent which the rest of the world could follow”.

However, it has long been recognised that the achievements of the Court are under threat by its own extraordinary popularity.  Since the setting up of the new full time Court in 1998 the number of cases brought each year has consistently increased.  In 1999, 8,400 cases were brought.  By 2008 this number has increased to 49,816.  Last year the number of cases registered was 57,000.  This exceeds by 22,000 the number of decisions and judgments delivered in the same year.  The gap between what goes in and what goes out has increased by 1,800 cases.  By the end of 2009 – the total number of pending cases was close to 120,000.  Over the preceding ten years the number of pending cases has been multiplied by a factor of ten.  Fifty-five percent of incoming applications come from four countries – Russia, Romania, Ukraine and Turkey – these countries representing 35% of the population of Council of Europe states.  In addition, the Court has a problem with cases that repeat the same complaint – the so-called “clone” or “repetitive” complaints - which account for up to 55% of the Court’s judgments.

The sheer weight of the numbers of cases being brought has meant that the Court and its registry are constantly amending the Court’s working methods to find efficient ways of managing the overwhelming flow of cases and to quickly dispose of those cases which are obviously inadmissible according to the criteria set out in the Convention.  However, these continuous efforts are merely palliative. The inevitable consequence is that the Court’s backlog continues to grow and that it takes the Court longer to deal with deserving cases.  In addition, the capacity of the judges, assisted by a registry of more than 650 (250 of whom are lawyers), to deal with the number of cases has reached saturation point.  Other negative consequences concern the increase of the risk of inconsistent case law between the Sections and the compromising of the prompt enforcement of judgments as the Council’s understaffed Execution Department struggles to keep abreast.  It has been clear for some time now that a structural reform of the Convention system is required to address the problem.

The question of reform has been high on the Council’s agenda since the Rome Conference in 2000.  This led to the drafting of an important protocol (Protocol No.14) which, although opened for signature in 2004 and ratified by 46 states by 2006, was not ratified by Russia and thus has not yet come into force.[ii]  It also led to the setting up of a group of Wise Persons mandated to make long-term reform proposals.  While many interesting proposals were made by the Wise Persons – one of their key proposals to reduce the size of the Court to a smaller body has not found favour with the states that remain attached to the principle that each of the Contracting Parties is entitled to a seat on the Court.[iii]

On 18 and 19 February of this year a key ministerial conference was held at Interlaken in Switzerland to address the Court’s problems and to draw up a plan of action encompassing both short and long-term solutions.  The aim of the conference was to initiate a process of reform (“a plan of action”) which will continue over a number of years.  The states were asked to imagine how they would like the Court to look in 2020.  While increased budgetary resources are important for the Court’s ability to function, there is a realisation that only far-reaching structural reform can provide the prospect of long term stability of the system.  The primary goal of the reform process is to enable the Court to focus its energies on dealing with the most important cases within a reasonable time.  To do this, a variety of measures are imperative.  The first is to consider ways in which the right of petition can be better managed.  Europe attaches such importance to the right of petition that to reduce it or to restrict it in any way is not considered to be a realistic or acceptable option. “Pick and choose” solutions simply do not work with an international court based on a system of collective guarantee where the principle of equality between the states must be scrupulously respected.  On the other hand, questions arise as to whether the time is ripe for the introduction of some form of modest court fee system to ensure that potential applicants with unfounded complaints think twice before complaining to the Court.  The states are also likely to focus on the need to develop a more efficient filtering system to weed out the clearly inadmissible cases as efficiently as possible.  This could involve, for example, the introduction of a “filtering mechanism” within the Court – beyond the single judge procedure – composed of a certain number of seconded national judges who would focus on dealing with inadmissible and possibly “repetitive” cases.

An important part of the proposals will focus on the need to ensure that human rights are better protected at home and that the Convention is properly “embedded” in domestic law.  It is, after all, part of the philosophy of the system that the Court’s role is a subsidiary one and that it is first and foremost the responsibility of the states to respect Convention rights.  States will be asked, for example, to increase the level of awareness of Convention standards at every level of the state and to commit to ensuring that proper legal remedies are put in place, that the Court’s judgments are fully executed and that the states draw appropriate conclusions from a judgment finding a violation of the Convention by another state.  As the Council of Europe’s Human Rights Commissioner, Thomas Hammerberg, has said: “governments need to work out promptly a systematic and holistic strategy that would better ensure within their jurisdiction the full realisation of the European human rights treaties, starting—with the Convention and the Court’s case law”.  One note of realism is necessary in this context.  While such measures are essential, in keeping with the philosophy that the Court is a subsidiary institution, it will obviously take a considerable time before they would have a meaningful impact on the Court’s workload.

Other measures relate to the recurring problem of repetitive complaints.  It is not right that the Court is being asked to act as a compensation claims commission awarding damages in a large number of judgments raising exactly the same issue.  The Court has in recent years developed a “pilot judgment” procedure which focuses on the identification of the systemic or structural causes underlying such complaints, in the context of a selected case, and requires the state to introduce national remedies capable of providing effective redress not only for the applicant but also for all those similarly affected.  However, for this innovative procedure to operate effectively the states may need assistance from Council of Europe experts to identify and take the necessary steps, including the creation of a broad-based national remedy.  The states are aware that the pilot judgment procedure is one of the important potential tools of the future success of the Court but, given the implications of the breadth of national reforms that it is capable of imposing, the states will also be concerned to ensure that the Court develops clear and predictable standards as regards the selection of applications, the procedure to be followed and the treatment of similar adjourned cases. 

It is, of course, a paradox that the future health of the European Court of Human Rights should be nurtured by the very governments that are found to be in violation of provisions of the Convention. But that is a given of any international treaty body. It is, nevertheless, an inevitable complicating factor in the reform process. When European Ministers gathered together in 1949 in the Palazzo Berberini in Rome to sign the Convention they had little idea of how the system would develop or its future legal and political significance in Europe.  One suspects that if they had a crystal ball to look into the future the Convention might not have seen the light of day!  However, when the Ministers met in Switzerland on 18 and 19 February they were aware that the Interlaken process must succeed in bringing about important structural changes if the Convention system is to continue to radiate its civilising influences throughout the Europe of the 47 and that the citizens of Europe expect effective steps to be taken.

It is an exciting time for legal innovation in Europe.  The EU’s Lisbon Treaty has just entered into force opening the way for accession by the EU to the Convention and making binding within the EU its own charter of fundamental rights.  Accession will undoubtedly open up a completely new vista for the Court since it will have competence to examine the acts and omissions of the EU and their compatibility with human rights standards.  Up until today this has been an unjustifiable gap in human rights protection in Europe.  In addition Russia is on the point of ratifying Protocol No. 14 which will soon come into force.  The time has never been more auspicious for Governments to seize the day.


[i] Michael O’Boyle, Deputy Registrar of the European Court of Human Rights and co-author of Harris, O’Boyle, Bates and Buckley, Law of the European Convention on Human Rights (second edition), Oxford University Press (2009).  All views are personal.

[ii] This Protocol has recently been signed by President Medvedev and will now come into force on 1 June 2010 following the deployment of significant diplomatic efforts by the states to convince the Russian authorities to ratify it.  It makes important changes to the system, in particular enabling single judges to dispose of obviously inadmissible cases and Committees of three judges to adopt judgments in repetitive cases on the basis of well-established case law.  In 2009 the states sought to circumnavigate Russia’s unwillingness to ratify by negotiating Protocol No 14 bis which authorised the Court to utilise the new procedures in respect of states that accepted them and contained provisions enabling it to come into force provisionally.  The states parties also authorised states that so preferred to make a declaration to accept the new procedures.

[iii] The Wise Persons Report can be found at the Court’s web site – www.echr.coe.int

 

« Back to the Home Page

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2010 – The International Judicial Academy with assistance from the American Society of International Law.

Editor: James G. Apple.
IJM welcomes comments, suggestions, and submissions.
PPlease contact the IJM editor at ijaworld@verizon.net.