Reform of the European Court of Human Rights
European Court of Human Rights Judiciary Photo: Council of EuropeReform of the European Court of Human Rights & Bringing a case to Strasbourg
The European Court of Human Rights (ECtHR) is undergoing considerable change in the way in which it operates: the Interlaken Declaration (2010), the Izmir Declaration (2011), Protocol 14 of the ECHR (2010) and EU accession to the European Convention on Human Rights (ECHR) (negotiations are taking place through 2011) are hallmarks of this transition.
They are also evidence of the pressing nature of the challenges faced by the Court and the deep concern expressed in relation to its very future. This note sets out some recent developments in the Reform Process and also looks at the question of bringing a case to Strasbourg and the admissibility criteria involved.
On Wednesday 2 March 2011 the IHRC hosted an information exchange of views on developments concerning the European Court of Human Rights.
A briefing note prepared for that meeting traces the response of both the Council of Europe and its Member States to the manifold challenges which currently blight the effectiveness of the Convention system. It also examines the implications for stakeholders at the national and international levels including indvidual Applicants.
Key Facts:
- In recent years the Court has seen an inexorable and unsustainable increase in applications - as of 31 December 2010 there were just shy of 140,000 cases in the backlog
- In 2010 there were approximately 60,000 new applications.
- 90-93% of applications are declared inadmissible.
- Yet individuals continue to bring inadmissible applications in high numbers to Strasbourg.
The 2010 Interlaken Declaration reaffirms the centrality of the right of individual petition and the principle of subsidiarity in the Convention system. It states that subsidiarity as understood in the Convention system is falling considerably short of its full potential. To address the backlog and repetitive applications, States are encouraged to adopt friendly settlements and unilateral declarations where appropriate. The Declaration also points to rigorous and uniform application of admissibility criteria and to possible filtering mechanisms as being crucial to the future of the Court. Indeed, it refers to "pilot judgements" as being an effective way of dealing with the problem of repetitive applications (discussed below). Separately, Advisory Opinions of the Court are proposed insofar as they could address major constitutional/ structural questions.
Just as the Declaration urges the Court to improve, it asks the same of Member States. It seeks to ensure that the best judges are nominated and it calls upon States Parties to consider the Court's judgments rendered against other countries where the same problem exists within their own legal system. The Declaration also calls for a review of the mechanism for the supervision of the execution of judgments. The Declaration can thus be seen as a salutary reminder to Member States of their obligations and responsibilities under the Convention. The Declaration also recognises the respective roles of Non-Governmental Organisations and National Human Rights Institutions in the reform process.
The European Group of National Human Rights Institutions had Observer status at the High Level Ministerial Conference and made an oral statement on the Declaration expressing the willingness of National Human Rights Institutions throughout Europe to contribute to Reform efforts while also urging that the independence of the Court be preserved.
The 2011 Izmir Declaration builds on Interlaken. It seeks to move forward with more urgency issues of inadmissible cases and the thorny question of what is meant by the term "subsidiarity". As with Interlaken, the European Group of National Human Rights Institutions had Observer status at the High Level Ministerial Conference and made an oral statement on the Declaration expressing some concern that national implementation was insufficiently addressed and that the independence of the Court should be maintained.
Bringing a case to Strasbourg: admissibility criteria
One of the preoccupations evident in the Reform of the European Court is how to tackle the huge backlog of 140,000 cases. Latest figures suggest that 90-93% of applications are declared inadmissible by the ECtHR yet individuals continue to bring inadmissible applications in high numbers to Strasbourg. There are other reasons for the backlog of course - effective domestic remedies for Convention rights would reduce the backlog. Nevertheless, all States have been requested to raise awareness of what the admissiblity criteria are so that people who wish to bring an application to Strasbourg do so in full knowledge of the criteria which the Court will apply. This should help to make applications more focused.
The Registry of the Court has developed a Practical Guide on Admissibility Criteria which is directed mainly to lawyers. The IHRC hopes to publish a more user-friendly version over the coming months. In the meantime, people should read the Court's guide to get a sense of what is involved in taking a case to Strasbourg.
Some facts on Ireland:
Ireland was one of the first countries to sign the ECHR in 1953 and has always supported the ECtHRt's work although it has not directly incorporated the ECHR into domestic law.
As of 31 December 2010 there were 59 pending cases allocated to a judicial formation at 31 December 2010 involving Ireland.
Judgments rendered against Ireland in the last year:
- McFarlane v. Ireland [GC], no. 31333/06, 10 September 2010, no. 133 - VIOLATION.
- A., B. and C. v. Ireland [GC], no. 25579/05, 16 December 2010, no. 136 - NO VIOLATION/ NO VIOLATION /VIOLATION.
In relation to McFarlane V Ireland, the State has published its Action Plan and the IHRC has submitted its Response to the Plan pursuant to Rule 9 of the Rules of the Committee of Ministers, to the Department of Execution of Judgements and Committee of Ministers.
Subsidiarity - Ensuring the Convention is applied in States
The problems which beset the Court are a direct cause of Member States' failure to give full effect to the principle of subsidiarity. It is hoped that the renewed vigour and impetus that the Interlaken Declaration has brought will not prove to be ephemeral; rather that it will translate into tangible and lasting progress.
In order to sustain this momentum and to strive for a more effective Convention system, National Human Rights Institutions have set out their stall to work with Member States and the organs of the Council of Europe in ensuring the success of the Interlaken Action Plan. This ranges from the identification of the effectiveness of domestic remedies and of pilot judgments to the monitoring of execution of European Court judgments; and through the elaboration of domestic reform measures to address those judgments including identified gaps in law or practice, thus ensuring conformity with the Convention's provisions. It also includes provision of better information on the Convention system, in particular to applicants and Non-Governmental Organisations through web-based materials covering admissibility issues and Convention cases of note.
Keeping abreast of Convention jurisprudence assists the IHRC in its domestic remit including through strategic amicus curiae interventions in the Superior Courts.