BY MATTIAS KETTEMANN
In 2010, the European Convention on Human Rights will celebrate its 60th anniversary. One might think this is a reason to celebate, but for Thorbjørn Jagland, the Secretary General of the Council of Europe, the Convention’s institutional mother, it’s not. In December 2009, he warned that the European Court of Human Rights, which oversees compliance with the Convention, was in a “desperate situation” and “no longer able to function as it should”; some judgments had been “reduced to a few lines”, amounted to “little more than an accounting exercise” and contained “less than a bare minimum of reasoning”. In brief, the situation was “intolerable and unworthy of our [the Council’s] member States’ repeatedly reaffirmed commitment to human rights.”
In general, the Court, which sits in Strasbourg, France, has been considered a huge success. What Secretary General Jagland, along with numerous human rights lawyers and activists over the past years, rightly criticized was that success had been too overwhelming. As the Court’s President, Jean-Paul Costa, pointed out in his Annual Report, in just one year 57,000 new applications had been allocated for decision and 35,460 applications were decided: 33,065 by relatively brief inadmissibility or strike-out decision, but 2,395 by sometimes extensive judgment.
To put things into perspective, in 2008 the U.S. Supreme Court published just 74 opinions. But the Strasbourg Court is charged with a mandate that should give rise to a much higher caseload: It must ensure adherence to the Convention by all 47 members states of the Council, and is, therefore, the court of last instance of human rights matters for 800 million people, a little less than three times the U.S. population.
It’s no wonder, then, that cases before the Court take a long time. So long, in fact, that sometimes the Court’s hearing of cases concerning the right to a fair trial within one of the Convention’s member states winds up violating the right to a fair trial at the Court – due to its lengthy proceedings.
Still, there are silver linings to the clouds that Secretary General Jagland saw during a year when the Court should be celebrating. In fact, three silver linings or “reasons for optimism” as President Costa put it in a rather more upbeat press conference on January 28th. Taken together, these three factors promise to make 2010 a revolutionary year for what is widely accepted to be the most successful and most advanced regional human rights protection system in the world. Let us consider them in turn.
First, the Lisbon Treaty, which finally entered into force on December 1, 2009, affirms that the European Union will accede to the European Convention of Human Rights. While there are still a number of unresolved procedural questions (should, for example, the EU now be represented by its own judge on the Court?) and serious substantive issues to clarify (especially concerning the relationship between the Luxembourg-based European Court of Justice, which rules on questions of EU law, and the Strasbourg Court), the move will have limited substantial impact on the level of human rights protection in EU countries. Already under the pre-Lisbon Treaty framework, fundamental rights, “as guaranteed” by the European Convention, were “general principles of the Union’s law.” President Costa described the future accession by the EU as a “major step towards creating a European fundamental rights space”. It is, at the very least, a symbolic one.
Also of substantial symbolic and real importance is the vote by the Russian State Duma to finally ratify Protocol 14 to the Convention, which was confirmed by the Duma’s upper chamber, the Federation Council, on January 27. Russia had been the only one of the Council’s 47 member states not to ratify the Protocol, mainly out of political disagreements with Strasbourg over the Court’s scrutiny of military activities in Chechnya, which had invariably led to a number of judgments holding Russia responsible for torture and illegal killings in there. Indeed, complaints against Russia account for roughly a third of all cases lodged with the Strasbourg Court.
Protocol 14, which is part of a larger process of reform of the European human rights system, provides for substantial procedural streamlining, by foreseeing, inter alia, new judicial formations, such as decisions rendered by single judges, or three-judge committees. Further, cases which similarities to already decided cases can be struck off the record (the famous pilot-judgment procedure), as can the untested and potentially problematic category of cases where an applicant has suffered no “significant disadvantage”. The Protocol will also allow the Committee of Ministers, a political organ, which is charged with supervising the enforcement of judgments, to work more effectively with national governments to ensure compliance.
While the changes brought by Protocol 14 have the potential to substantially streamline Court proceedings, they are not revolutionary. Some procedural provisions have already been implemented through Protocol 14bis, which was adopted in May 2009, after it became apparent that Russia’s ratification of Protocol 14 would take some time. The pilot-judgment procedure has also been applied, rather successfully, through a creative interpretation of conventional procedure rules from 2004 onwards, when it was introduced in Broniowski v. Poland. Protocol 14bis will become moot when Protocol 14 enters into force on June 1, 2010, provided that Russia’s instrument of ratification reaches Strasbourg by the end of February.
The third positive impetus for the European human rights protection system will have its origin in the idyllic Swiss town of Interlaken, where, on February 18-19, a “High Level Conference on the Future of the European Court of Human Rights” will take place. President Costa described the conference as a “landmark” event in which states would reaffirm their commitment to human rights and, more significantly, “draw up a roadmap for the future development of the Court”. A number of Council officials have weighed in with statements on what needs to be achieved in Interlaken. While differing on the details, the main challenges are clear (though the ways to achieve them are less so).
President Costa himself suggested a number of obvious and not so obvious long- and short-term goals. He proposed, for instance, to develop the idea of filtering applications by legal secretaries as it was unclear whether all applications “should be examined judicially”. Drawing “inspiration” from the EU’s judicial system, he also suggested adding a Human Rights Tribunal subordinate to the Court as a European human rights court of first instance, though this would contribute to what some criticize as the mushrooming of European human rights institutions, with largely parallel bodies existing in the parallel structures of the Council and the European Union.
Among the new ideas to be explored “immediately,” President Costa finally counted “class actions” or collective applications (which are largely alien to the European legal system) and the possibility of referral by the Court of purely repetitive cases to member states or the Committee of Ministers to be “dealt with on the basis of well-established case-law”.
While the details, as mentioned before, will still need to be worked out and the days before the Interlaken conference are sure to be filled with intensive intra-European human rights diplomacy, one conclusion of President Costa is certainly true: Reforms must bear in mind the “principle of a better sharing of responsibility between the Court and the States”. Truly, ensuring human rights protection is not a matter that states can leave to a court alone, especially one as swamped with cases as the European Court of Human Rights. It is a common responsibility.
Interlaken literally translates as “between the lakes”. Let us hope that when it comes to reform of the Court system Europe’s leaders will not get wet feet.
< em>Matthias C. Kettemann is an LL.M. student from Austria.