Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

the court and the member states: procedural aspects 37

The Court already decides that a very high proportion of all applications are inadmissible. Thus, making it even easier to declare cases inadmissible is not necessarily a step forward. Would the Court not suffer a legitimacy problem if it raised its overall inadmissibility ratio from around 90 per cent (where it is today – even if the ratio varies considerably from state to state) to 99 per cent? The other part of the Court’s problems simply put, is that some states produce relatively high numbers of admissible cases.

The number of applications received per year varies enormously from state to state, as does the inadmissibility ratio. This depends to a large extent on the size of the population, but it also varies according to the knowledge the general public (and the legal profession) have of the Convention system in the different states, and how positively these groups look upon the Convention system compared to their own national systems for protection of rights. If a state has a well-functioning national rights system, there may seldom be a need to take a matter to the Court. As pointed out in the Introduction to this volume, there is a group of high case producing states. This group is responsible both for large numbers of clearly inadmissible applications and large numbers of admissible applications.

Having said that, this new inadmissibility ground may contribute, albeit in a small way, to maintaining or strengthening the Court’s legitimacy as amongst the member states which are not producing large numbers of admissible cases. A complaint which is heard, at least in certain member states, is that the ECtHR should not be taking up issues which are better dealt with by national courts, at least in states which are well-functioning democracies, with efficient courts.35 I have heard this complaint, openly or privately, from judges in states with a strong or relatively strong national system for the protection of human rights. Of course, the argument has often been made by state representatives that the Convention regime is a necessary and important safeguard for other states, but that the ECtHR can and should leave one’s own state alone.

35See Føllesdal, Peters and Ulfstein, ‘Introduction’, this volume, nn. 19–21. As regards the Swedish discussion, see the article critical, inter alia, of the judgment in ECtHR, Johansson v. Finland (Appl. No. 10163/02), Judgment (Fourth Section), 6 September 2007, not reported, by former President of the Supreme Administrative Court, Sten Heckscher, ‘Finns det någon europeisk rätt?’, C. Wong (ed.), Festskrift till Per Ole Träskman (Stockholm: Norstedts, 2011).

This criticism, paradoxically perhaps, can be seen as evidence of the fact that national courts are trying loyally to implement ECtHR case law in their own systems.36 If the ECtHR was routinely ignored, judges would not bother criticising ‘erroneous’ or ‘inappropriate’ ECtHR case law (or even be aware of it). Still, the criticism of friends is often more important to listen to than the criticism of enemies. Article 35(3)(b) – if it is used – allows the Court to claim with greater force that the issues it takes up genuinely need to be taken up.

4.4Other changes, particularly regarding repetitive cases

Protocol 14 made other important changes. However, these are dealt with elsewhere in this volume.37 As regards the impact of the pilot procedure on numbers of applications, or repetitive cases, it will suffice to state the following. The procedure can be a way of bundling together groups, even large groups, of applications and/or repetitive cases.38 However, it is not a panacea either for the number of applications or for the repetitive cases problem, because the procedure requires favourable political conditions for its effective application.39 Several of the states which suffer most from structural deficiencies in human rights protection are also those states which are least inclined to make, or least capable of making, structural reforms. As already mentioned, the high case-producing states are also responsible for most of the repetitive cases.

36What evidence there is indicates that the ECtHR has, generally speaking, relatively high status among European judges. B. Çalı, A. Koch and N. Bruch, The Legitimacy of the European Court of Human Rights: The View from the Ground (University College London, Department of Political Science, 2011).

37As already noted, I will not go into the issue of selection of judges. I will content myself with noting that while the non-renewable term of office of nine years (art. 23 ECHR) strengthens the Court’s independence, and so adds to legitimacy, it causes a problem in that it takes time to learn the work of any court. ‘Settling-in’ in an international court with 47 legal cultures takes time. The Court has previously chosen its leaders from amongst the most experienced judges on the bench, and these will have to ‘learn quicker’.

38See, e.g., ECtHR, Gaglione and Others v. Italy (Appl. No. 45867/07 and 474 others), Judgment (Second Section), 21 December 2010, not reported (475 applications).

39See Rule 61 of the Rules of Procedure, 21 February 2011; ECtHR, Greens and M.T. v. UK (Appl. Nos. 60041 and 60054/08), Judgment (Fourth Section), 23 November 2010, Reports 2010; and Leach, Chapter 5 this volume. See also, W. Sadurski, ‘Partnering with Strasbourg: Constitutionalisation of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments’, Human Rights Law Review 9 (2009) 397–453.

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The more than 30,000 repetitive cases at present pending before the Court can be seen as the its problem. One solution, which the Court has advocated, would be to develop a practice whereby the Registry refers a list of cases directly to the relevant government to be settled in an appropriate way. In the absence of any justified objections from the government, failure to provide redress within a fixed period of time would lead to a ‘default judgment’ awarding compensation to the applicant.40 However, one can instead see the problem as belonging to the Committee of Ministers, to whom the main function of supervising the execution of the Court’s judgment falls under article 46(2). The issue of supervision, and the different options open for the Court (infringement proceedings etc.), are discussed elsewhere in this volume.41

Three points should, however, be made here, as they have a direct bearing on procedure. First, any search for a solution to the overload of cases must focus on the real cause(s) of the problem. Both much of the backlog problem, and much of the repetitive case problem, could be solved at a stroke by the expulsion from the Council of Europe of the three ‘worst offenders’. One can argue that the scale of the problems revealed in these states indicates that they do not fulfil the requirements of membership. But no one seriously contemplates expulsion. The identity and destiny of Europe is bound up with that of Russia and Turkey. Self-serving reasons for European states – strategic in the case of Turkey, a bridge between Europe and the Islamic world, strategic/ energy in the case of Russia – mean that they must be a part of Europe. Above all, the progressive forces in the Russian, Turkish and Ukrainian administrations and civil societies would have their work terribly damaged if Europe (not simply the European Union (EU)) ‘turned its back’ on these countries.

Second, the repetitive cases are largely because of the absence of effective local remedies. Courts might exist, but lack jurisdiction (e.g. over military personnel), or there may be practical obstacles in either getting the case to the court, or implementing its judgment in the face of opposition from central or local power structures.

These factors vary in strength according to the state in question. It is not possible to go into detail in such complicated issues of legal and political

40ECtHR, ‘Preliminary Opinion’, para. 21.

41See Lambert-Abdelgawad, Chapter 7 this volume. See also generally, E. LambertAbdelgawad, The Execution of Judgments of the European Court of Human Rights, 2nd edn (Strasbourg: Council of Europe Publishing, 2008).

culture, but something brief must be said to give an idea of the depth of the problems which the ECtHR has – indirectly – been landed with.

As regards Russia, the local courts may well be corrupt, but even where they are not, they may have little power to check senior officials who ignore the law and/or are corrupt. So they may be of little use for an individual complainant. This is a problem for the whole country, not only for the big cities.42 Moreover, a constitutional court, such as the Russian Constitutional Court, which is limited to controlling the constitutionality of the laws themselves and which cannot rectify human rights violations caused by the wrong application of a law, is of little practical use either. Thus, it does not function as a filter on applications to the ECtHR. Similar points apply to the Ukraine.43

As regards Turkey, it has provided re-opening remedies for administrative, criminal and civil cases. It has also recently reformed its laws and the procedure of the Constitutional Court, providing that individuals can complain to it of violations of their constitutional rights where these fall within the scope of the ECHR.44 It remains to be seen whether this – residual – remedy45 will be regarded as sufficiently attractive to cut down significantly on applications to the Court, but it is clearly a step forward. The main problems are the ongoing low-intensity conflict in the country, something which is never conducive to respect for human rights, combined with a more general resistance to the Convention on the part of the military, sections of the bureaucracy and sections of the legal establishment.46

42A. Nußberger, ‘The Reception Process in Russia and Ukraine’, in H. Keller and A. Stone Sweet (eds.), A Europe of Rights: The Impact of the ECHR on National Legal Systems

(Oxford University Press, 2008) 604–77, at 631–2 (hereinafter Keller and Stone Sweet (eds.), A Europe of Rights).

43Ibid., at 650. She adds, ‘the population does not trust the judges in general. The large number of individual applications before the Court is, therefore, a sign of deeply rooted problems in Russia’s and Ukraine’s post-Soviet societies.’

44See Law on the Establishment and Rules of Procedure of the Constitutional Court of Turkey (Law No. 6216, adopted 30 March 2011, arts. 45–51), available at www.venice.coe. int.

45Article 47(5) of Law No. 6216 provides that it is only applicable ‘in case no legal remedy is provided for’. If this, and other, Turkish remedies come to qualify as ‘effective’, then the ECtHR will require exhaustion of these, meaning that the number of admissible applications from Turkey will decline, probably considerably.

46İ.O. Kaboğlu and S.-I.G. Koutnatzis, ‘The Reception Process in Greece and Turkey’, in Keller and Stone Sweet, A Europe of Rights 452–531, at 522. The authors conclude that ‘the climate in Turkey is not conducive to independent human rights bodies, while judicial review of State action also faces significant limitations’.

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As regards the other high-count states, the following can be said. Poland is a high-count country for primarily two reasons: length of proceedings and detention on remand.47 To these can be added property problems, many connected to the ‘Bug river’ claims, now largely resolved. As regards Italy, here, too, it is length of proceedings together with property issues, fair trial and family law issues which are responsible for the largest groups of cases.48 More or less the same applies to Romania, where property and fair trial make up the largest groups of cases, together with smaller numbers of cases concerning length of proceedings, liberty/security and family life.49 The intensity of the rights violations in Poland, Romania and Italy are thus nowhere near as serious as in the other three states, even if their persistence is, putting it mildly, very embarrassing for EU members which are supposed to be

Rechtsstaaten.50

Third, the amount of the case law shows the difficulties which courts, acting alone, have in changing societies. Courts are gatekeepers of social change.51 They can facilitate it, but when powerful social forces resist change, they need the support of the executive branch. There is nothing new here. In the 1960s and 1970s, the US Supreme Court found itself unable to ensure the implementation of its progressive judgments regarding racial equality in several states. It took a long period of time for this to happen, and when it did it was mainly a result of changes in

47ECtHR, ‘50 Years of Activity: The European Court of Human Rights Some Facts and Figures’, www.echr.coe.int/NR/rdonlyres/ACD46A0F-615A-48B9-89D6-8480AFCC

29FD/0/FactsAndFigures_EN.pdf. For discussion, see M. Krzyżanowska-Mierzewska, ‘The Reception Process in Poland and Slovakia’, in Keller and Stone Sweet (eds.), A Europe of Rights (hereinafter Krzyżanowska-Mierzewska, ‘The Reception Process in Poland and Slovakia’), at 567–8.

48ECtHR, ‘50 Years of Activity’. Number of judgments finding at least one violation were (to 2009), respectively: 1,095 (length of proceedings), 229 (property issues), 291 (fair trial), 128 (family life).

49‘50 Years of Activity’, ibid. Numbers of judgments finding at least one violation were (to 2009), respectively: 373 (property), 304 (fair trial), 62 (length), 45 (liberty/security), 35 (family life).

50Krzyżanowska-Mierzewska, ‘The Reception Process in Poland and Slovakia’, at 567 points out for Poland that the introduction of a right of individual constitutional complaint, which happened as far back as 1996, did little to stem the flow of applications to Strasbourg, even if the ECtHR since 2003 regards this as a local remedy to be exhausted.

51Cf. Lord Devlin’s remark: ‘There is always a host of new ideas galloping around the outskirts of a society’s thought. All of them seek admission but each must first win its spurs … In a changing society … the law acts as a valve.’ P. Devlin, The Judge (Oxford University Press, 1981), at 1.

local government and public opinion brought about by the voting public, together with a combination of carrots and sticks at the federal level. The ‘least dangerous branch’ of government steers by legitimacy, not force or money. It is clear that, for powerful factions in the executive branch of several of the high producing states, it is still force or money which are the really strong arguments.52

5.The priority policy

The Court has always been able to give priority to a particular case, and has done so on occasion. However, a quite different issue is general criteria for priority applying to classes of case. In June 2009, the Court amended Rule 41 of its Rules of Court to provide that ‘the Court shall have regard to the importance and urgency of the issues raised on the basis of criteria fixed by it. The Chamber, or its President, may, however, derogate from these criteria so as to give priority to a particular application.’ These fixed criteria, dividing cases into seven categories, were later published in November 2010.53

The first three categories, in order of significance, are urgent applications (in particular, risk to life or health of the applicant, other circumstances linked to the personal or family situation of the applicant), applications raising questions capable of having an impact on the effectiveness of the Convention system, or applications raising an important question of general interest and applications which on their face raise main complaints issues under articles 2, 3, 4 or 5(1) of the Convention. Thereafter come potentially well-founded applications based on other articles, applications raising issues already dealt with in a pilot/leading

52The following point made by US Supreme Court Justice Breyer on political maturity is instructive. Justice Breyer noted President Eisenhower’s decision in the 1950s to enforce the Supreme Court’s desegregation decisions with the US Army, in the face of resistance by the state national guard, and stated that: ‘Many people were upset with the Supreme Court’s decision in Bush v. Gore. But while that decision has inspired a wide range of different responses and emotions, I have yet to read about the need for deploying paratroopers. Tracing the trajectory of the rule of law in this country reveals that we have arrived at the point where people will accept the fundamental legitimacy of judicial decisions even if they disagree with the outcomes of those decisions. This acceptance of the rule of law has come to exist only over time in this country. And it is an ideal that is not yet universal.’ S. Breyer, ‘Introduction of President Luzius Wildhaber’, American University International Law Review 22:4 (2007) 517–20.

53ECtHR, ‘The Court’s Priority Policy’, 2010, www.echr.coe.int/NR/rdonlyres/DB6EDF5E- 6661-4EF6-992E-F8C4ACC62F31/0/Priority_policyPublic_communication_EN.pdf.

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judgment (i.e. ‘repetitive cases’), applications identified as giving rise to a problem of admissibility, and applications which are manifestly inadmissible.

What are the effects of this? The priority policy is a radical step, but it does not mean that the Court can choose which individual cases it selects. Instead, it has identified certain categories of case for fast(er) treatment. The main problem it involves is for the category of well-founded nonrepetitive cases concerning ‘less-important’ articles. These will only come up for decision many years after filing of the case.54 Most applicants can be assumed to have lost interest by then, and this will undoubtedly damage the legitimacy of the Court. The priority policy is a consequence of the insistence of the state parties, and much of the non-governmental organisation (NGO) community, that the right of individual petition be preserved. It has been preserved, but at the price that large numbers of applications will not, in practice, be examined. At present, two rights are at the centre of a considerable proportion of the applications, namely, the right to a fair trial and the right to property. These can still be the subject of a pilot judgment, but judgments on ‘follow-on’ cases will not be forthcoming for many years.55 It also goes in the opposite direction from two of the ideas behind Protocol 14, i.e. that inadmissible cases be dealt with rapidly and that ‘repetitive cases’ would be dealt with by a Committee. If the priority policy remains unchanged, and the Court receives no additional funding, the likelihood is that the number of committee judgments will decline sharply.

6.Interlaken, Izmir, Brighton and ongoing reform discussions

6.1 Introduction

The initiative for a conference of states parties came in 2009 from the President of the Court, who wanted them to recognise the enormity of

54The majority of the category I ‘urgent’ applications (79%) have been pending for less than two years; 65% of the category II applications (pilot or leading cases) have at least been communicated to the government; 64% of the category III applications (complaints about articles 2, 3, 4 or 5(1) of the Convention) are still waiting for a first examination by the Court; and 50% of all the applications in this category have been pending for more than two years. See ECtHR, ‘Analysis of Statistics 2010’, January 2011, www.echr.coe.int/NR/ rdonlyres/0A35997B-B907-4A38-85F4-A93113A78F10/0/Analysis_of_statistics_2010.pdf. See also below, section 7.

55Compare the comment by A. Buyse, ‘The Court’s New Priority Policy’, 17 November 2010, http://echrblog.blogspot.com/2010/11/courts-new-priority-policy.html.

the problems facing the Court and to make a political commitment to support it.56 The Swiss government in response organised a conference in Interlaken. The Izmir Conference came soon after, too soon to be particularly meaningful, and adds little new to Interlaken. The declaration commits the parties in an ‘Action Plan’ to a timetable of discussion and evaluation. The main forum for the continued discussions is the Steering Committee for Human Rights (CDDH). The Committee of Ministers is to evaluate, during 2012 to 2015, to what extent the implementation of Protocol 14 and of the Action Plan has improved the situation of the Court. On the basis of this evaluation, it should decide, before the end of 2015, on whether there is a need for further action. Before the end of 2019, it should decide on whether the measures adopted have proven to be sufficient to assure sustainable functioning of the control mechanism of the Convention, or whether more profound changes are necessary. The Brighton Conference makes some important additions to the Interlaken undertakings.

In this section, I will discuss briefly a number of procedural proposals noted in either or both of the Interlaken and Brighton declarations, namely, a statute, the possible introduction of fees, a mandatory requirement of legal representation, advisory opinions, an additional, or amended, filtering mechanism, an increased emphasis on subsidiarity and changes to the admissibility criteria and, finally, improvements to the mechanisms for ensuring consistency of case law.

6.2 A statute

The procedure for amending the Convention is very time-consuming and, as the Russian obstruction tactics concerning Protocol 14 showed, uncertain. When a relatively minor change in how the Court deals with a procedural issue requires a new protocol, a crisis which has been building up for a long time can be exacerbated even further. The solution is to give the Court more control over its working methods by moving parts of Section II of the Convention to a statute that could be subject to a simplified amendment procedure. The provisions the CDDH has provisionally identified are: article 24(2), concerning (non-judicial) rapporteurs assisting single judges; article 26(1), insofar as it concerns the size of non-singular judicial formations, but excluding their type; article 26(2),

56ECtHR, ‘Memorandum of the President of the European Court of Human Rights to the States with a View to Preparing the Interlaken Conference’, 3 July 2009, www.coe.int.

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concerning reduction in the size of chambers; article 26(5), concerning the composition of the Grand Chamber; article 27, insofar as it concerns the competence of single judges, but excluding the principle of judicial decision-making; article 28, insofar as it concerns the competence of committees, but excluding the principle of judicial decision-making; article 29, insofar as it concerns decisions by chambers on admissibility and merits, but excluding the principle of judicial decision-making; article 30 concerning relinquishment of jurisdiction to the Grand Chamber; article 31 concerning powers of the Grand Chamber; article 39(2)–(4) concerning friendly settlements, but excluding the ‘essential’ principle; article 42 concerning finality of chamber judgments; article 43

(2) and (3) concerning referral to the Grand Chamber, but excluding the grounds on which the panel of five judges shall accept requests for referral; article 44(2) concerning finality of chamber judgments; article 47(3) concerning Committee of Ministers’ procedure for requesting advisory opinions; and article 48 concerning the Court’s advisory jurisdiction.57 The CCDH was not unanimous on all of these, and it noted that the final choice of provisions that could be subject to a simplified amendment procedure will also depend on the modality eventually retained for introducing such a procedure.

The CDDH also concluded that the following issues currently found outside the Convention (i.e. in the Rules of Court or the Court’s case law) may be suitable for ‘upgrading’, namely, Rule 39 of the Rules of Court on interim measures; the pilot judgment procedure; and unilateral declarations. There are various ways in which this can be accomplished.58 One problem is that national constitutional laws might prohibit a state from ratifying a protocol that introduced a simplified amendment procedure, or from accepting proposed amendments without first submitting them to parliamentary approval.59

57CoE, ‘Interim Activity Report’, CDDH(2011)R72 Addendum I, 72nd meeting, Strasbourg, 29 March–1 April 2011.

58The most comprehensive approach is to amend the Convention and the Rules of Court, and create a separate statute all at the same time. See H. Keller, A. Fischer and D. Kühne, ‘Draft Statute for the European Court of Human Rights – A Contribution to Reforming the European System’, Human Rights Law Journal 30 (2011) 1–12.

59For example, under Chapter 10, para. 7 of the Swedish Constitution, (1974:152, as amended) delegation of competence to an international judicial organ is only permitted ‘to a limited extent’. This should not, however, constitute an insuperable obstacle, bearing in mind the fact that Sweden has accepted both the right of the ICJ and the CJEU to amend their own statutes.

As regards the procedure itself, the CDDH considered that amendments could be proposed by states parties or the Court; and the Committee of Ministers would adopt these by consensus (i.e. unanimity within the meaning of article 20(a) of the Statute of the Council of Europe). The CCDH, interestingly, considered that the Court should be consulted (in the case that the proposal does not come from it), but does not appear to give it a veto. If this is so, then it shows desire on the part of the states parties to retain strong control over the Convention and a rather worrying lack of willingness to trust the Court. Worse, if the Court does not have full control over the content of the changes, there is a risk that the states parties, by making, or threatening to make, a procedural change, can influence the Court’s case law.

The states parties in the Brighton Declaration contented themselves with noting with appreciation the continuing discussions on the issue and calling for a swift conclusion to these discussions (para. 37). A statute covering the powers set out above would undoubtedly strengthen the Court, even if it would not decisively change its character as a halfinternational, half-constitutional court. It is difficult for states openly to deny the advantages for flexibility a statute on these lines would entail. Still, it seems clear that some, or even many, of the states parties are reluctant to strengthen the Court in this way.

6.3 Fees

The idea of Court fees has been floating about for a while. The purpose is to deter wholly unmeritorious applications.60 In this respect, a comparative perspective might be useful. A Venice Commission comparative study61 reveals that fees before a constitutional court are exceptional. In the United States there is a fee of $300 for lodging a petition to grant a writ of certiorari before the Supreme Court; in Russia, the fee amounts to one minimum wage, in Armenia to five minimum wages, in Switzerland a minimum of 200 and a maximum of 5,000 CHF, and in Austria the fee is €220. In Israel, there is a fee of approximately $400 to file a petition with the Supreme Court, sitting as the High Court of Justice, but the

60As is all too clear from the experience of all the international mechanisms for rights protection, a tried and tested method some states apply for discouraging both meritorious and unmeritorious applications is to send men around to a complainant’s house.

61Venice Commission, ‘Study on Individual Access to Constitutional Justice’, adopted at 85th Plenary Session, Venice, 17–18 December 2010, CDL-AD(2010)039, paras. 116–17.