Book on ECHR Reforms and Domestic Implementation

This week a new book on the relationship between the European Court's reforms and a better domestic implementation of the Convention has been published by Intersentia. Costas Paraskeva, a human rights lawyer in Cyprus, has written 'The Relationship Between Domestic Implementation of the ECHR and the Ongoing Reforms of ECtHR' based on his PhD thesis defended at London Metropolitan University. This is the abstract:

The European Court of Human Rights has become a “victim of ongoing reforms”. Continuous efforts to streamline and reinforce the system have proved inadequate in managing the challenge of its ever-increasing caseload. The consensus is that further reforms to the European Convention on Human Rights mechanisms are necessary in order to cope with the serious influx of cases from the 47 member states of the Council of Europe.

This book analyses the set of five Recommendations referred to in the 2004 Declaration of the Committee of Ministers of the Council of Europe to encourage member states to take effective domestic steps in ensuring appropriate protection of the Convention rights at the domestic level, in full conformity with the principle of subsidiarity. It also traces and evaluates the impact of the Convention in the domestic legal orders of Cyprus and Turkey and assesses, comparatively, the effective implementation of the May 2004 Recommendations in these two member states.

This book demonstrates how efforts to secure the survival and effective operation of the Court by reducing the ever increasing number of individual applications, must primarily be undertaken at national level so that the burden to comply with the Convention is carried by the member states in the first instance. The 2004 Recommendations, which address the source of the problem, are appropriate prescriptions for a healthy future and constitute a technical vehicle for implementing the Convention in the domestic legal orders of member states. These Recommendations constitute guidelines stemming directly from the Convention and are therefore invaluable in assisting member states in the pursuit to improve the protection of human rights “at home”.

The table of contents can be found here.

Medvedev Signs Protocol 14 ECHR

Yesterday, the Russian President Dmitry Medvedev has signed the law approving Protocol 14 ECHR, reports press agency ITAR-TASS. This was the last remaining step to take before Russia formally ratifies by depositing its acceptance with the Council of Europe in Strasbourg. Protocol 14's time has finally come. Now all attention can focus on the Interlaken conference preparing essential reforms.

EU Accession to ECHR

Yesterday and the day before, the Spanish Presidency of the European Union and the EU's Fundamental Rights Agency organised a conference on EU accession to the ECHR. The entry into force of the European Union's Lisbon Treaty at the end of last year in combination with the upcoming entry into force of Protocol 14 ECHR will enable this accession. Accession will mean that a judge elected in respect of the EU will become part of the Court, bringing in particular expertise. Individuals will be able top bring complaints about the EU to Strasbourg after exhausting the EU's own existing system of remedies. For answers to some of the main questions concerning the issue, click here. For the speech that Council of Europe's S-G Thorbjørn Jagland delivered, see here.

No Religion on Identity Cards

Yesterday, the Court ruled in the case of Sinan Isik v. Turkey on the mentioning of religious affiliation on identity cards. Mr Isik was a member of the Alevi community, which is seen by some as a part of Islam and by others as a separate religion. His request to change the religion on his identity card from 'Islam' to Alevi was refused by the authorities. Only since 2006 a new legal provision allowed citizens to ask for a change of religion on their identity cards or even to have the entry left blank.

The Court reiterated that the freedom of religion (article 9 ECHR) also included a negative aspect, including the rigth not having to manifest one's religion or beliefs. The core of the issue for the Court was not so much the refusal to register the applicant as Alevi, but more broadly the very fact that he either had to indicate his religion or formally ask for the religion box to be left empty. That in itself, in the Court's view, violated the Convention. It seems from the judgment that this goes not only for identity cards, but also for civil registers.

The case is especially interesting since Turkey is a state with the notion of "laïcité" as one of its defining aspects, but the state here determined - through the legal advice of the Religious Affairs Directorate, that the Alevi faith was part of Islam.

Continuing a recent trend in its own jurisprudence, the Court indicated under Article 46 ECHR (the duty for states to abide by the Court's judgments) that the complete deletion of the 'religion box' on identity cards would be an appropriate remedy for the violation concerned.

One of the seven judges, Cabral Barreto dissented, arguing that the Court went too far and deviated from its own case-law by holding that even in a case like this, in which people were allowed to ask for a deletion of the mentioning of a particular religion without divulging what other beliefs they held, the Convention was violated. He does add that he sees no value or interest whatsoever in including religion on an identity document.

The judgment itself is in French, but a press release in English can be found here.

PACE Addresses Property Issues of Refugees and IDPs

Permit me to highlight a resolution adopted by the Parliamentary Assembly (PACE) last week on the issue of 'Solving property issues of refugees and displaced persons.' The resolution contains a set of recommendations for member states and is based on human rights law, including the European Convention, but also international norms on housing and property restitution, such as the Guiding Principles on Internally Displaced Persons and the Pinheiro Principles. The recommendations amongst others call for timely and effective property restitution irrespective of the status of political negotiations - thus adopting a clear human rights approach. The background report, prepared by Danish MP Jørgen Poulsen, can be found here. He also refers to my own 'Post-Conflict Housing Restitution. The European Human Rights Pespective, with a Case Study on Bosnia and Herzegovina', which elaborates on the links between housing and property restitution and the European Convention.

Italy Asks for Referral to Grand Chamber of Crucifix Case

Just a few days before the three months deadline, Italy asked last week for referral of the case of Lautsi to the Grand Chamber of the Court. At the beginning of November last year, the Court had found that the compulsory presence of crucifixes in classrooms of public schools violated the ECHR. See my earlier comment here. Amongst others, the request for referral contends that the Chamber's judgment was in contradiction with earlier Court case-law, leaves too little margin of appreciation, and - following the reactions in many European countries - is obviously a serious issue of general importance (one of the criteria in Article 43 ECHR for referral). I think it would be very good if the Court, through the Grand Chamber, would make a new assessment of the case, since this is indeed a question with many ramifications and a very thoughtful (and maybe more pragmatic approach) is called for here.

Thank you to Nicola Bassan for pointing this out!

Costa's New Year's Press Conference

Yesterday, president Costa of the Court gave his annual press conference. He expressed optimism for three very different reasons. First, the entry into force of the EU's Lisbon Treaty which clears the way for EU accession to the ECHR. President
Costa qualified this as an important step towards the creation of a "fundamental rights space" in Europe. Secondly, the Russain Duma's acceptance of Protocol 14 to the ECHR a few weeks ago, which - and there is some news - the Russian Federal Council (the other branch of Russsia's legislative) also voted in favor of on Wednesday! Formal ratification will thus hopefully follow very soon. Thirdly, the upcoming Interlaken conference, which Costa labelled "a major challenge for the member States and an opportunity for the Court."

The less positive backdrop of these developments is the ever-growing caseload of the Court, as Costa also acknowledged. He pointed out currently over 119,000 applications are pending. Accordign to hte press release, "over 57,000 new applications were allocated to a judicial formation in 2009 which was a 15% increase compared to the previous year. Over the same period, 35,460 applications were decided - 2,395 by judgment and 33,065 by an inadmissibility or strike-out decision; that represented an increase of 27% and 10% respectively in relation to 2008. As in 2008, 4 States (Russia, Turkey, Ukraine and Romania) were the source of almost 56% of the pending applications: in particular 28.1% of the cases were directed against Russia, 11% Turkey, 8.4% Ukraine and 8.2% Romania." This points to the need for icnreased country-specific legal cooperation by other Council of Europe institutions with these four states in order to improve domestic performance. The statistics can be found in full in the provisional edition of the Court's Annual Report 2009, which has also been made available online.

Full video footage of the conference can be watched here.

New Italian Judge at the Court

Tuesday, the Parliamentary Assembly of the Council of Europe elected Mr Guido Raimondi He has been elected for a six-year term of office and will replace Vladimiro Zagrebelsky, who in March will be reaching the age of 70 - the age-limit for ECtHR judges. He has been a judge at the Court since 2001.

According to the Court's press release, Mr Raimondi was born in 1953. A member of the judiciary, he has worked in particular in the Diplomatic Legal Service of the Italian Ministry for Foreign Affairs. He is currently Legal Advisor to the International Labour Office and head of the ILO’s Legal Services. Mr Raimondi has been appointed ad hoc judge of the Court by the Italian Government in a number of cases.

Book on Interpretation Techniques of ECtHR and IACtHR

Nomos Publishers just published a book by Benavides Casals entitled Die Auslegungsmethoden bei Menschenrechtsverträgen Die Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte und des Interamerikanischen Gerichtshofs für Menschenrechte (Methods of intepretation of human rights treaties by the European and Inter-American Courts of Human Rights). For those who read German, here is the abstract:

Ein umfassender und effektiver Schutz der Menschenrechte kann nur durch eine sachgerechte Interpretation der Menschenrechtsverträge gewährleistet werden. Die Wissenschaft und die internationale Gerichtsbarkeit haben hierfür spezifische Auslegungsmethoden entwickelt.

Die Autorin untersucht die Interpretationskriterien, die zwei internationale Gerichtshöfe in ihrer Rechtsprechung verwenden. Sie analysiert die Auslegungsmethodik des EGMR und des Interamerikanischen Gerichtshofs für Menschenrechte. Die Studie richtet sich insbesondere an Völkerrechtler.

PACE, S-G, and Interlaken

Last December the Parliamentary Assembly of the Council of Europe (PACE) held a hearing on the Interlaken process entitled 'The future of the Strasbourg Court and enforcement of ECHR standards: reflections on the Interlaken process'. The conclusions of the chairperson of that hearing, Mrs Herta Däubler-Gmelin, have just been made public. The summary of the hearings conclusions give a good insight in how frank and direct the discussion was among the participants: single-judge procedures are labelled a "fig-leaf that maintains the legal fiction of a judicial determination of all applications." And someone also raised the option of punitive sanctions against the most notorious ECHR transgressing countries.

The text of the contribution of the the Secretary-General of the Council of Europe can be found here (in French).

This is the full text of the PACE hearing conclusions:

Committee on Legal Affairs and Human Rights

The future of the Strasbourg Court and enforcement of ECHR standards: reflections on the Interlaken process

Conclusions of the Chairperson, Mrs Herta Däubler-Gmelin,
of the hearing held in Paris on 16 December 2009

1. These conclusions are presented under four distinct headings, to reflect the manner in which the hearing was organised, even though such a sub-division is somewhat artificial. The conclusions are not a verbatim record or a detailed overview of all issues raised at the hearing. Instead, I have decided to focus on what I perceive to be the most important points raised in discussions (and in documents made available to Committee members).

I. The context: Interlaken Conference to be held on 18-19 February 2010

2. Why did I propose to the Committee a hearing on this subject? There were two reasons for this. It struck me as rather odd that the Assembly had not been involved in any of the substantive discussions or in meetings leading up to the conference. Also, it appeared to me that the title of the conference – “The Future of the European Court of Human Rights” – was too narrowly circumscribed, suggesting that problems facing the Court should be our primary concern. Our hearing dispelled this misunderstanding: the conference must also urgently address domestic (non-)implementation of Convention standards and determine how best to ensure prompt and full compliance with Strasbourg Court judgments – as our best hope to help stem the flood of applications submerging the Court.

3. When circulating the draft Interlaken Declaration, the Swiss authorities specified that the declaration should pursue three objectives: (i) reaffirm a commitment to the ECHR system (including the right of individual application), (ii) express support for the Strasbourg Court to act autonomously in its initiatives to increase its own efficiency, and (iii) put on track in-depth reform to guarantee the long-term efficiency of the system of individual complaint. This Declaration, together with an eight-point Action Plan, is presently the object of consultations with member states (draft text available on the Committee of Ministers’ Chairmanship website www.interlakenconf.admin.ch). But how, and exactly upon whose authority, and in whose name, have these priorities been established and would they be implemented? I note, in this connection that – as yet – the potentially key role of national legislative organs and of the Assembly is not alluded to.

4. The Swiss authorities must be commended for their initiative. But do member states, at ministerial level, have the courage to “bite the bullet” to confront the real human rights issues and problems facing member states and the Council of Europe? We are all fully aware that:

• the Strasbourg Court is not equipped to deal with large scale abuses of human rights (why has the Committee of Ministers not made vigorous use of its 1994 Declaration on Compliance with Commitments?; ditto the Assembly, in refocusing its monitoring priorities?);

• a number of the Court’s main “clients” have made no serious effort to put into effect the 2000- 2004 reform package (will ministers take upon themselves the responsibility to ‘name and shame’ states that have put into jeopardy the existence of the ECHR system?), and

• considering that the Court is financed through the Council of Europe’s budget, state contributions are totally inadequate, not to say pathetic (several states’ contributions to the Council of Europe’s budget do not even cover – or only barely – the salary of a single judge on the Court!).

II. The authority and effectiveness of the ECHR: need for a renewed impetus

5. The authority of the Strasbourg Court is contingent on the stature of judges and the quality and coherence of the Court’s case-law, which certain states have put into question. The most eminent jurists in member states with relevant experience should be encouraged to leave flourishing national careers, preferably in their late 40s, 50s and early 60s, to serve in Strasbourg. When national selection procedures are inadequate, the Assembly’s hands are tied; often candidates are good, but not outstanding. If the findings of the Strasbourg Court are to be recognised as authoritative by their peers at the domestic level, the Assembly must be in a position to elect top quality judges.

6. The sheer volume of applications needing attention in Strasbourg has led to unacceptable delays which prevent judges from concentrating on their principal judicial task in dealing with cases that merit priority consideration. In this sense, quality and effectiveness are jeopardised by workload. The Strasbourg Court’s Registrar provided us with alarming statistics. By the end of 2009, the Court will have received almost 57,000 new applications, an increase of 14%. On the side of output, the Court will have rendered judgment in more than 2,000 cases, an increase of more than 20% compared to 2008. But the backlog has reached almost 120,000, with a deficit of 1,800 applications every month. When analysing the Court’s problems, we were informed that a small number of states dominate the Strasbourg Court’s backlog: Russia represents nearly 28%, Turkey 11%, Ukraine 8.6% and Romania 8.3%. These four states together represent roughly 57% of the backlog. If one takes the ten high case-count states, the backlog comes to 77% (adding Italy, Poland, Georgia, Moldova, Slovenia and Serbia). Indeed, in 2008, 86% of the Court’s judgments (1,543 in total) concerned just 12 states.

7. Another factor to be taken into account is the very high number of repetitive applications before the Court, deriving from the same structural problems at the domestic level, some of which have remained unresolved for many years. Over half of the judgments concern repetitive applications. The registrar estimated that there are probably about 20,000 such cases in the Court’s backlog. In 2008 70% of the Court’s judgments concerned breaches of the Convention in repetitive or clone cases.

8. To these statistics can be added information about late (and non-)execution of Strasbourg Court judgments. The number of cases pending before the Committee of Ministers at the end of 2000 was 2,298, while the equivalent figure for 2009 was 8,614, of which 80% concern repetitive cases. This too, is unacceptable.

9. Simply put, the Convention system in Strasbourg is in danger of asphyxiation:

• it is impossible for the Court to render justice to all individuals (as recognised by the existence of committee and single-judge procedures, a ‘fig-leaf’ that maintains the legal fiction of a judicial determination of all applications);

• it is totally absurd for the Court and its staff to waste time and effort in dealing with repetitive applications (surely old democracies, like Italy, not to mention more recent ‘persistent defaulters’ such as Moldova, Poland, Romania, Russia and Ukraine, ought to be subjected to “aggravated”, if not “punitive” or “exemplary”, damages)

• failure of many states to provide appropriate effect to their Convention obligations, haphazard implementation of the 2000-2004 reform package and unacceptable delays in full execution of Strasbourg Court judgments (what prevents national parliaments and the Assembly from summoning ministers to account for this at “hearings” in full view of the media, and for the Committee of Ministers to bring “infringement proceedings” against recalcitrant states with respect to non-execution?)

10. The root causes of the Court’s workload and increasing backlog have to be eliminated. All meritorious cases, even if mostly repetitive, must be dealt with by the Strasbourg Court. There are no easy solutions, and in this respect reference can be made to ideas mooted, in particular, in the CDDH Opinion and by the Secretary General in their contributions to the Interlaken Conference. But should we embark, already now, on yet another major (internal) reform of the Strasbourg Court? Is there an imperative necessity to create within the Court an additional judicial filtering body, as advocated by the German authorities and others? Why cannot this be done by a “chambre des requêtes” composed of (a rotating pool of) existing judges? Could not such work be undertaken by ad litem judges taken from within the Court’s registry and/or states’ judicial corps? Should we not wait to see how the “pilot judgment” procedure develops? And what about the introduction of the system of “astreintes” (a fine for delay in performance of a legal obligation) to be imposed on states that persistently fail to comply with Court judgments (see Assembly Opinion No.251 (2004), paragraph 5)? Could one not consider, for example, the utility of imposing a small court fee to discourage potentially hopeless applications being addressed to Strasbourg?

11. There exist no miracle solutions to the difficulties confronting the Strasbourg Court if we are to maintain its dual role of ensuring common European human rights standards and individual supervision and adjudication. Tinkering with such controversial issues as the compulsory use of the Court’s official languages or compulsory representation by a lawyer might simply divert precious time and energy from other essential work.

III. The authority and effectiveness of the ECHR: need for prompt and full implementation of the Court’s judgments

IV. The authority and effectiveness of the ECHR at the national level: stemming the flood of applications

12. These two subjects were dealt together at the hearing; both touch upon issues in relation to which we parliamentarians – in our dual capacity as national legislators and members of the Assembly – have a crucial role to play. They also concern the “principle of subsidiarity”, in that states have primary responsibility to prevent human rights violations and to remedy them when they occur.

13. National parliaments can and should ensure the compatibility of draft laws, existing legislation and administrative practice with Convention standards, and in particular possess “specific mechanisms and procedures for effective parliamentary oversight of the implementation of the Court’s judgments on the basis of regular reports by the responsible ministries” (Assembly Resolution 1516 (2006), paragraph 22.1). For present purposes suffice to recall work we have been undertaking on this subject since 2000, the hearing we had in November 2009 on “parliamentary scrutiny of ECHR standards” (highlighting the effectiveness of parliamentary procedures in the United Kingdom and in the Netherlands), and the fact that too few parliaments have, to date, set up appropriate oversight mechanisms to ensure the rapid and effective implementation of Strasbourg Court judgments.

14. The Strasbourg supervisory mechanism is “subsidiary” in nature. States are responsible for the effective implementation of the Convention and it is the shared duty of all state organs (the executive, the courts and the legislature) to prevent or remedy human rights violations at the national level. This is principally, but not exclusively, the responsibility of the judiciary. Hence the logic of putting into place an effective human rights complaints mechanism at the national level, which would diminish the risk of the Strasbourg Court acting as a fourth instance appellate jurisdiction. Witness the small amount of complaints, comparatively speaking, that reach the Strasbourg Court from Spain and Germany. Appropriate domestic remedies, intensive training of lawyers, prosecutors and judges, the creation of a human rights culture and the impregnation of the Strasbourg acquis within national state structures – especially with respect to the “big sinners” (see paragraphs 6 to 8 above) – would help stem the flood of applications to the Court. Thus, well-functioning national human rights protection mechanisms might make superfluous the idea of creating a separate filtering body within the Strasbourg Court and shift back primary responsibility to national legal systems, where it belongs.

15. One subject of particular significance, discussed at the hearing, was the need to enhance the authority and direct application of the Strasbourg Court’s findings in domestic law. Rather than refer to the erga omnes effect of Grand Chamber judgments of principle, it is probably more accurate to refer to its interpretative authority (res interpretata) within the legal orders of states other than the respondent state in a given case. Here, I have in mind the United Kingdom’s 1998 Human Rights Act, Section 2 § 1 of which specifies that national courts “must take into account” Strasbourg Court judgments, and Article 17 of Ukrainian Law No.3477–IV of 2006, which reads: “Courts shall apply the Convention [ECHR] and the case-law of the [Strasbourg] Court as a source of law”. This subject merits special attention in Interlaken.

16. The Council of Europe and its member states must do their utmost to solve a number of – often very serious – human rights problems in a handful of recalcitrant states. Rather than concentrate time, energy and money on reform (primarily) within the Court, is it not better to await, as proposed by the Group of Wise Persons in 2006, the effects of Protocol No.14 (which is to improve the Court’s efficiency by 25%), and place greater emphasis on the implementation of the 2000-2004 reform package? I believe that I reflect the majority view of the Committee when citing the CDDH position on this subject:

“In order to ensure the long-term effectiveness of the Convention system, the principle of subsidiarity must be fully operational. This should be the central aim of the Interlaken Conference” (CDDH Opinion, § 9, my underlining).

*****

17. As this is my last contribution to the work of the Parliamentary Assembly, I allow myself one final observation, namely the need for the rapid accession of the European Union to the European Convention on Human Rights. This would guarantee a coherent Europe-wide system of human-rights protection, reinforce legal certainty and provide greater protection of individuals’ rights. The Treaty of Lisbon assures a legal basis for EU accession, and the imminent entry into force of Protocol No.14 to the Convention will provide the legal basis on the Strasbourg side.

18. Then, rather than enter into an institutional agreement – entailing many years of negotiation –, a “memorandum of understanding” could be quite quickly agreed between the EU and ECHR states parties by mid-2010, and accession foreseen soon afterwards (with practical details as to the participation of the EU in the Convention system being settled separately in parallel). If we are not inventive in deciding how best to deal with EU accession to the Convention, we will be confronted with the prospect of a long, protracted process of 47 individual ratifications on the Council of Europe side.