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COUNCIL OF EUROPE
COMMITTEE OF MINISTERS
Recommendation Rec(2004)6
of the Committee of Ministers to member states
on the improvement of domestic remedies
(adopted by the Committee
of Ministers on 12 May 2004,
at its 114th Session)
The Committee of Ministers,
in accordance with Article 15.b of the Statute of the
Council of Europe,
Considering that the aim of
the Council of Europe is the achievement of greater unity
among its members, and that one of the most important
methods by which that aim is to be pursued is the
maintenance and further realisation of human rights and
fundamental freedoms;
Reiterating its conviction
that the Convention for the Protection of Human
Rights and Fundamental Freedoms (hereinafter referred to as
“the Convention”) must remain the essential reference point
for the protection of human rights in Europe, and recalling
its commitment to take measures in order to guarantee the
long-term effectiveness of the control system instituted by
the Convention;
Recalling the subsidiary
character of the supervision mechanism set up by the
Convention, which implies, in accordance with its Article 1,
that the rights and freedoms guaranteed by the Convention be
protected in the first place at national level and applied
by national authorities;
Welcoming in this context
that the Convention has now become an integral part of the
domestic legal order of all states parties;
Emphasising that, as
required by Article 13 of the Convention, member states
undertake to ensure that any individual who has an arguable
complaint concerning the violation of his rights and
freedoms as set forth in the Convention has an effective
remedy before a national authority;
Recalling that in addition
to the obligation of ascertaining the existence of such
effective remedies in the light of the case-law of the
European Court of Human Rights (hereinafter referred to as
“the Court”), states have the general obligation to solve
the problems underlying violations found;
Emphasising that it is for
member states to ensure that domestic remedies are effective
in law and in practice, and that they can result in a
decision on the merits of a complaint and adequate redress
for any violation found;
Noting that the nature and
the number of applications lodged with the Court and the
judgments it delivers show that it is more than ever
necessary for the member states to ascertain efficiently and
regularly that such remedies do exist in all circumstances,
in particular in cases of unreasonable length of judicial
proceedings;
Considering that the
availability of effective domestic remedies for all arguable
claims of violation of the Convention should permit a
reduction in the Court's workload as a result, on the
one hand, of the decreasing number of cases reaching it and,
on the other hand, of the fact that the detailed treatment
of the cases at national level would make their later
examination by the Court easier;
Emphasising that the
improvement of remedies at national level, particularly in
respect of repetitive cases, should also contribute to
reducing the workload of the Court;
Recommends that member
states, taking into account the examples of good practice
appearing in the appendix:
I. ascertain, through
constant review, in the light of case-law of the Court, that
domestic remedies exist for anyone with an arguable
complaint of a violation of the Convention, and that these
remedies are effective, in that they can result in a
decision on the merits of the complaint and adequate redress
for any violation found;
II. review, following Court
judgments which point to structural or general deficiencies
in national law or practice, the effectiveness of the
existing domestic remedies and, where necessary, set up
effective remedies, in order to avoid repetitive cases being
brought before the Court;
III. pay particular
attention, in respect of aforementioned items I and II, to
the existence of effective remedies in cases of an arguable
complaint concerning the excessive length of judicial
proceedings;
Instructs the Secretary
General of the Council of Europe to ensure that the
necessary resources are made available for proper assistance
to member states which request help in the implementation of
this recommendation.
Appendix to
Recommendation Rec(2004)6
Introduction
1. The Ministerial
Conference1
held in Rome on 3 and 4 November 2000 to commemorate the
50th anniversary of the European Convention on Human Rights
(hereinafter referred to as “the Convention”) emphasised
that it is states parties who are primarily responsible for
ensuring that the rights and freedoms laid down in the
Convention are observed and that they must provide the legal
instruments needed to prevent violations and, where
necessary, to redress them. This necessitates, in
particular, the setting-up of effective domestic remedies
for all violations of the Convention, in accordance with its
Article 13.2
The case-law of the European Court of Human Rights
(hereinafter referred to as “the Court”)3
has clarified the scope of this obligation which
is incumbent on the states parties to the Convention by
indicating notably that:
- Article 13 guarantees the
availability in domestic law of a remedy to secure the
rights and freedoms as set forth by the Convention.
- this article has the
effect of requiring a remedy to deal with the substance of
any “arguable claim” under the Convention and to grant
appropriate redress. The scope of this obligation varies
depending on the nature of the complaint. However, the
remedy required must be “effective” in law as well as in
practice;
- this notably requires that
it be able to prevent the execution of measures which are
contrary to the Convention and whose effects are potentially
irreversible;
- the “authority” referred
to in Article 13 does not necessarily have to be a judicial
authority, but if it is not, its powers and the guarantees
which it affords are relevant in determining whether the
remedy it provides is indeed effective;
- the “effectiveness” of a
“remedy” within the meaning of Article 13 does not depend on
the certainty of a favourable outcome for the applicant; but
it implies a certain minimum requirement of speediness.
2. In the recent past, the
importance of having such remedies with regard to
unreasonably long proceedings has been particularly
emphasised,4
as this problem is at the origin of a great number of
applications before the Court, though it is not the only
problem.
3. The Court is confronted
with an ever-increasing number of applications. This
situation jeopardises the long-term effectiveness of the
system and therefore calls for a strong reaction from
contracting parties.5
It is precisely within this context that the availability of
effective domestic remedies becomes particularly important.
The improvement of available domestic remedies will most
probably have quantitative and qualitative effects on the
workload of the Court:
- on the one hand, the
volume of applications to be examined ought to be reduced:
fewer applicants would feel compelled to bring the case
before the Court if the examination of their complaints
before the domestic authorities was sufficiently thorough;
- on the other hand, the
examination of applications by the Court will be facilitated
if an examination of the merits of cases has been carried
out beforehand by a domestic authority, thanks to the
improvement of domestic remedies.
4. This recommendation
therefore encourages member states to examine their
respective legal systems in the light of the case-law of the
Court and to take, if need be, the necessary and appropriate
measures to ensure, through legislation or case-law,
effective remedies as secured by Article 13. The examination
may take place regularly or following a judgment by the
Court.
5. The governments of member
states might, initially, request that experts carry out a
study of the effectiveness of existing domestic remedies in
specific areas with a view to proposing improvements.
National institutions for the promotion and protection of
human rights, as well as non-governmental organisations,
might also usefully participate in this work. The
availability and effectiveness of domestic remedies should
be kept under constant review, and in particular should be
examined when drafting legislation affecting Convention
rights and freedoms. There is an obvious connection between
this recommendation and the recommendation on the
verification of the compatibility of draft laws, existing
laws and administrative practice with the standards laid
down in the Convention.
6. Within the framework of
the above, the following considerations might be
taken into account.
The Convention as an
integral part of the domestic legal order
7. A primary requirement for
an effective remedy to exist is that the Convention rights
be secured within the national legal system. In this
context, it is a welcome development that the Convention has
now become an integral part of the domestic legal orders of
all states parties. This development has improved the
availability of effective remedies. It is further assisted
by the fact that courts and executive authorities
increasingly respect the case-law of the Court in the
application of domestic law, and are conscious of their
obligation to abide by judgments of the Court in cases
directly concerning their state (see Article 46
of the Convention). This
tendency has been reinforced by the improvement, in
accordance with Recommendation Rec(2000)2,6
of the possibilities of having competent domestic
authorities re-examine or reopen certain proceedings
which have been the basis of violations established by the
Court.
8. The improvement of
domestic remedies also requires that additional action be
taken so that, when applying national law, national
authorities may take into account the requirements of
the Convention and particularly those resulting from
judgments of the Court concerning their state. This notably
means improving the publication and dissemination of the
Court's case-law (where necessary by translating it into the
national language(s) of the state concerned) and the
training, with regard to these requirements, of judges and
other state officials. Thus, the present recommendation is
also closely linked to the two other recommendations adopted
by the Committee of Ministers in these areas.7
Specific remedies and
general remedy
9. Most domestic remedies
for violations of the Convention have been set up with a
targeted scope of application. If properly construed and
implemented, experience shows that such systems of “specific
remedies” can be very efficient and limit both the number of
complaints to the Court and the number of cases requiring a
time-consuming examination.
10. Some states have also
introduced a general remedy (for example before the
Constitutional Court) which can be used to deal with
complaints which cannot be dealt with through the specific
remedies available. In some member states, this general
remedy may also be exercised in parallel with or even before
other legal remedies are exhausted. Some member states add
the requirement that the measure being challenged would
grossly infringe constitutional rights and that a refusal to
deal with the appeal would have serious and irreparable
consequences for the appellant. It should be pointed out
that states which have such a general remedy tend to
have fewer cases before the Court.
11. This being said, it is
for member states to decide which system is most suited to
ensuring the necessary protection of Convention rights,
taking into consideration their constitutional traditions
and particular circumstances.
12. Whatever the choice,
present experience testifies that there are still
shortcomings in many member states concerning the
availability and/or effectiveness of domestic remedies, and
that consequently there is an increasing workload for the
Court.
Remedies following a
“pilot” judgment
13. When a judgment which
points to structural or general deficiencies in national law
or practice (“pilot case”) has been delivered and a large
number of applications to the Court concerning the same
problem (“repetitive cases”) are pending or likely to be
lodged, the respondent state should ensure that potential
applicants have, where appropriate, an effective remedy
allowing them to apply to a competent
national authority, which
may also apply to current applicants. Such a rapid and
effective remedy would enable them to obtain
redress at national level, in line with the principle of
subsidiarity of the Convention system.
14. The introduction of such
a domestic remedy could also significantly reduce the
Court's workload. While prompt execution of the pilot
judgment remains essential for solving the structural
problem and thus for preventing future applications on the
same matter, there may exist a category of people who have
already been affected by this problem prior to its
resolution. The existence of a remedy aimed at providing
redress at national level for this category of people might
allow the Court to invite them to have recourse to the new
remedy and, if appropriate, declare their
applications inadmissible.
15. Several options with
this objective are possible, depending, among other things,
on the nature of the structural problem in question
and on whether the person affected by this problem has
applied to the Court or not.
16. In particular, further
to a pilot judgment in which a specific structural problem
has been found, one alternative might be to adopt an
ad hoc approach, whereby the state concerned would assess
the appropriateness of introducing a specific remedy
or widening an existing remedy by legislation or by judicial
interpretation.
17. Within the framework of
this case-by-case examination, states might envisage, if
this is deemed advisable, the possibility of reopening
proceedings similar to those of a pilot case which has
established a violation of the Convention, with a view to
saving the Court from dealing with these cases and where
appropriate to providing speedier redress for the person
concerned. The criteria laid out in Recommendation
Rec(2000)2 of the Committee of Ministers might serve as a
source of inspiration in this regard.
18. When specific remedies
are set up following a pilot case, governments should
speedily inform the Court so that it can take them into
account in its treatment of subsequent repetitive cases.
19. However, it would not be
necessary or appropriate to create new remedies, or give
existing remedies a certain retroactive effect, following
every case in which a Court judgment has identified a
structural problem. In certain circumstances, it may be
preferable to leave the cases to the examination of the
Court, particularly to avoid compelling the applicant to
bear the further burden of having once again to exhaust
domestic remedies, which, moreover, would not be in place
until the adoption of legislative changes.
Remedies in the case of
an arguable claim of unreasonable length of proceedings
20. The question of
effective remedies is particularly topical in cases
involving allegations of unreasonable length of proceedings,
which account for a large number of applications to the
Court. Thus the Court has emphasised in the Kudla v.
Poland judgment of 26 October 2000 that it is important to
make sure there is an effective remedy in such cases, as
required by Article 13 of the Convention. Following the
impetus given by the Court in this judgment, several
solutions have been put forward by member states in order to
provide effective remedies allowing violations to be found
and adequate redress to be provided in this field.
Reasonable length of
proceedings
21. In their national law,
many member states provide, by various means (maximum
lengths, possibility of asking for proceedings to be speeded
up) that proceedings remain of reasonable length. In certain
member states, a maximum length is specified for each stage
in criminal, civil and administrative proceedings. The
integration of the Convention into the domestic legal
systems of member states, particularly the requirement of
trial within a reasonable time, as provided for in
Article 6, has reinforced and completed these national law
requirements.
Preventing delays,
accelerating proceedings
22. If time limits in
judicial proceedings – particularly in criminal proceedings
– are not respected or if the length of proceedings is
considered unreasonable, the national law of many member
states provides that the person concerned may file a request
to accelerate the procedure. If this request is accepted, it
may result in a decision fixing a time limit within
which the court – or the prosecutor, depending on the case –
has to take specific procedural measures, such as closing
the investigation or setting a date for the trial. In some
member states, courts may decide that the procedure has to
be finished before a certain date. Where a general remedy
exists before a Constitutional Court, the complaint may be
submitted, under certain circumstances, even before
the exhaustion of other domestic remedies.
Different forms of
redress
23. In most member states,
there are procedures providing for redress for unreasonable
delays in proceedings, whether ongoing or concluded. A form
of redress which is commonly used, especially in cases
already concluded, is that of financial compensation. In
certain cases, the failure by the responsible authority to
issue a decision within the specified time limit means that
the application shall be deemed to have been granted. Where
the criminal proceedings have exceeded a reasonable time,
this may result in a more lenient sentence being imposed.
Possible assistance for
the setting-up of effective remedies
24. The recommendation
instructs the Secretary General of the Council of Europe to
ensure that the necessary resources are made available for
proper assistance to member states which request help in
setting up the effective remedies required by the
Convention. It might take the form, for instance, of surveys
carried out by expert consultants on available domestic
remedies, with a view to improving their effectiveness.
