""


Report on the events organised by the European Court of Human Rights to commemorate the 10th anniversary of the the adoption of Protocol 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms

 

29.10.2008

 

    Report on the events organised by the European Court of Human Rights
    to commemorate the 10^th anniversary of the the adoption of Protocol
        11 to the Convention for the Protection of Human Rights and
                           Fundamental Freedoms 

   On  13 October 2008 in Strasbourg, France, the European Court of Human
   Rights  (the  Court)  organised  two  events  to commemorate the 10^th
   anniversary  of  the adoption of Protocol 11 to the Convention for the
   Protection  of Human Rights and Fundamental Freedoms (the Convention).
   This  protocol  reformed  the  Court  into  a  single  court  to which
   individuals  claiming  to  be  victims  of a violation of their rights
   under the Convention can apply.

   The   two   events  were:  (1)  "Meeting  with  NGOs  and  applicants'
   representatives"  and  (2)  "Seminar  to mark the 10^th anniversary of
   entry  into  force  of  Protocol  No.  11  to  the  Convention for the
   Protection of Human Rights and Fundamental Freedoms."

   The chief aim of both events was to stage an open, face-to-face debate
   with  the  judges  of  the Court and members of the Registry, and also
   with  the  academics.  These discussions will enable the Court to take
   stock  of  the  Court's  activities  over  the last ten years, without
   complacency, so that the Court can contemplate the challenges ahead in
   a constructive fashion.

   Meeting with NGOs and applicants' representatives

   38  representatives  of  NGOs  from 47 member-states of the Council of
   Europe (no every member-state was represented, and some countries like
   Russia were represented by more then one NGO) took part in the Meeting
   with NGOs and applicants' representatives. Among represented NGOs were
   international  human rights organizations (such as Human Rights Watch,
   Amnesty  International,  Council  of Bars and Law Societies of Europe)
   and  regional  (such  as Kuridish Human Rights Project (UK), Bulgarian
   Lawyers  for Human Rights (Bulgaria), Sutyajnik (Russia)). Most of the
   regional NGOs were from UK or Eastern European countries. Russian NGOs
   had  the  biggest  number  of  the participants. The European Court of
   Human  Rights  (the  Court)  was  represented  by the President of the
   Court,  Jean-Paul  Costa and other judges of the Court, senior members
   of the Secretariat of the Courts.

   The  meeting  was  in the form of short two presentations by judges of
   the  Court,  two  presentations  by representatives of NGOs as well as
   questions and answers.

   The  presentations  and questions and answers were focused on two main
   topics:  the  evolution  of  the  right to individual petition and the
   evolution of the European human rights case-law.

   The meeting with the NGOs' representatives was opened by the President
   of  the Court Jean-Paul Costa who stressed that "the European Court is
   on  the  edge of the brink." The crisis that the Court is experiencing
   at  the  moment  is  due  to  the  Court's  own success, continued the
   President  of  the Court, due to the trust of 800 million Europeans to
   bring  individual  petitions  on violations of their rights before the
   Court.  Another  reason  which  worsens  the  crisis  is  the  Russian
   Federation's  refusal  to  ratify Protocol 14 to the Convention, which
   was  aimed  at  reforming  the Court to allow it to process individual
   applications  more speedily. Jean-Paul Costa added: "We will not allow
   the  rights to individual petition to kill itself." The measures which
   are  intended to meet the challenges faced by the Court were discussed
   at the seminar which followed the meeting with NGOs' representatives.

   After  the introductory speech by the President of the Court, James A.
   Goldston, Director of the Open Society Justice Initiative, and Laurent
   Pettiti,  President of the Human Rights Committee, Council of Bars and
   Law  Societies  of  Europe,  gave  general overview of the problems of
   procedure raised by the NGOs and applicants' representatives.

   Judges  of  the  Court  Francoise  Tulkens and Lech Garlicki addressed
   concerns  of  judges  of the Court. Issue raised by the judges concern
   the  crisis  situation  of  the  Court.  They will be reflected in the
   second part of this report.

   The  core  of the meeting consisted of questions by representatives of
   NGOs  and  answers  to  the  questions  by  judges  of  the Court. The
   following  issues  were raised by NGO representatives, which partially
   reflected  issues  previously  raised  by  James  Goldston and Laurent
   Pettiti:

    1. The  need  for broader access to the Court's case materials on the
       Court's web-cite (beyond decisions of admissibility and judgements
       on  the  merits).  Erik  Friberg, Secretary of the Registry of the
       Court,  answered  that the Court is looking into this issue, there
       will  be broader access to case materials. However, there shall be
       given  attention  to the demands of the applicant who often do not
       want their cases be in the public domain.
    2. Short time limit (6 weeks) for submission of third party (by NGOs)
       interventions.  The  time restraint could be partially lifted, was
       the  reaction  of  the representative of the Court, but not to the
       large extent.
    3. Better communication process at the pre-admissibility stage. NGOs'
       representatives highlighted the existence of unequal rights of the
       governments   and  representatives  of  applicants  in  submitting
       communications  (memorandums),  particularly  there is a different
       time  limit  allowed  for  submissions  by the governments and the
       applications' representatives.
    4. Non-existence  of  clear  criteria  for  the appointment of public
       hearing  of  cases  was mentioned as well as lack of notifications
       about the forthcoming hearing.
    5. Lack  of information on reason for inadmissibility of applications
       decided  by committees of three judges was mentioned. Participants
       were  asking  whether it is possible to give to applicants reasons
       for  deciding  against  admissibility  of applications in order to
       avoid repetition of mistakes.
    6. Possibility   of   conducting   communications   with  applicants'
       representatives  by email was raised. It may increase the speed of
       the  communication  process  as  well  as  reduce  the cost of the
       proceedings.
    7. Possibility   of  rendering  judgements  obliging  governments  to
       publicly  express  apologies  to  an  applicant  for  a particular
       committed human rights violation was discussed.

   Seminar  to mark the 10^th anniversary of entry into force of Protocol
   No.  11  to  the  Convention  for  the  Protection of Human Rights and
   Fundamental Freedoms

   The major topic discussed at the seminar was the much needed reform of
   the  Court.  The  President  of  the Court Jean-Paul Costa started the
   meeting with NGO representatives and the seminar with the same massage
   - "the Court is on the edge of the brink," reforms are needed.

   The  problem  is  that  the  Court,  having  become  popular among the
   Europeans,   is   forced   to   deal   with  a  big  number  of  cases
   (applications),  most  of  which are inadmissible, or repetitive cases
   (so-called  clone  cases)  which  could  and  should  be dealt with by
   national  legal  systems.  Instead  of dealing with major human rights
   issues,   the   Court   spends   95%  of  its  time  in  dealing  with
   inadmissibility issues and issues that national governments shall deal
   with.

   Partially  Protocol  14 to the Convention was drafted in order to deal
   with situation of the case load of the Court. The Protocol 14 is aimed
   at  improving independence of judges and restructuring the work of the
   Court  in  order  to  speed  up the process of consideration of cases.
   However,  since  December  2006 the promulgation of the Protocol 14 is
   blocked  by  the Russian Federation (Russia is the only country out of
   47  member-states  of  the  Council  of  Europe  which  did not ratify
   Protocol  14).  The  current  concern  is  that  the administration of
   justice  by  the  Court has to be reformed in the condition of lack of
   Protocol 14 in order to safe the right to individual petition.

   A number of measures are considered in order to remedy the situation.

   As  of  today all the cases coming to the Court have equal status. The
   Court is looking at establishing principles for filtering applications
   coming  for  consideration of the Court. This work has already started
   with  reforming  the  Court's  Registry.  Special  subdivision  of the
   Registry  was  created which is responsible for priority consideration
   of some cases.

   The  next  step  to deal with the excess of cases is to free the Court
   from  consideration  of  repetitive  indisputable  cases (for example,
   cases  on  lack of execution of national court judgements). Such cases
   shall be a responsibility of national legal systems.

   Another  tool  that  the Court has already started to use is so-called
   "pilot  judgements."  The Court considers only one (first) case of the
   kind  and the rest similar cases directs to the responsible government
   to  deal  with  the  problem under the supervision of the Committee of
   Ministers of the Council of Europe.

   When  faced  the  problem  of  Russia  blocking  Protocol 14 which was
   supposed  to  reform the work of the Court, it became obvious that the
   procedure of reforming the Court itself shall be changed and made more
   flexible.   There   are   suggestions   of  abandoning  Protocols  for
   introduction  of  procedural  changes  and adopting the Statute of the
   Court  which  would  incorporate  procedural issued. The provisions on
   material rights will be left to the Convention and Protocols thereto.

   Even  if  the  Protocol  14 had been adopted in time (2006), still the
   reform  of  Protocol  14  would  have  come  late. Even at the time of
   ratification  process  of  Protocol  14  the Court needed more radical
   reforms,  not  to  say  of  the today's situation. The solution of the
   problem is seen in adopting the Statute of the Court.

   The  main  idea  of  the  Statute is to be able to make changes to the
   procedure of the work of the Court without engaging into a complicated
   and  time  consuming  process  of  ratification  of  protocols  to the
   Convention.  The  Committee of Ministers of the Council of Europe will
   be introducing changes by way of issuing unanimous resolutions without
   introducing each time amendments in the Convention.

   In order to save the right to individual petition which in 50 years of
   its  existence  and  10 years of the existence of the "new" Court, the
   right  to  individual petition has to be partially limited by shifting
   responsibility in consideration of cases to national legal systems and
   by  changing  the  functioning  of  the Court. It shall be reformed in
   order  to  reflect  the  need  of dealing with the big number of cases
   coming before the Court.

   October 29, 2008

   Anton Burkov

   PhD candidate in law

   University of Cambridge

   ab636@cam.ac.uk

   6 documents attached.


, , :

.      


:

  Diaspora*

:

:

:

(? ? ? OpenID?)

e-mail ( , - ):

:

( -):