Post on 08-Jan-2023
Can the European Court of Human Rights continue to play a
meaningful role in the protection and development of human
rights across the full range of current Council of Europe member
states?
Anthony De Bondt
student Master in European Governance
University of Luxembourg
Essay written in the framework of the course
Régimes internationaux et européens des Droits de l’homme
Prof. Harmsen, prof. Koff, prof. Lehners
June 10, 2013
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1. Introduction
Founded in the immediate aftermath of WWII, the notion of peace was made very
clear by the founding fathers of the Council of Europe already in its preamble:
‘Convinced that the pursuit of peace based upon justice and international co-operation
is vital for the preservation of human society and civilisation…’.1 The former
European leaders also bore in mind that the newly established Europe could only be
preserved from new divisions and conflicts by ensuring the respect for the dignity of
all humans. It is in this light that in 1949 the CoE and more in particular the
Parliamentary Assembly, approved the European Convention for the Protection of
Human Rights and Fundamental Freedoms (ECHR) (Sepúlveda et al., 2004). The
convention was signed on 4 November 1950 and entered into force on 3 September
1953. Among other human right bodies established by the ECHR, the most prominent
and well-known is the European Court of Human Rights2. This Court has been
praised for its accomplishments but suffers from a ‘crisis of success’, especially since
the adoption of protocol 11 in 1998. The enlargement eastwards has burdened the
Court with both quantitative as well as qualitative struggles. An oft-raised question is
whether the Court can still effectively protect and develop human rights across the
full range of the CoE member states or whether its role is doomed to be limited. In
this paper I shall address this question. After a brief introduction to the ECtHR (2) I
describe the interaction that exist between the Court and national legislations (3) and
the developments that have taken place concerning the EU’s accession to the ECHR
and its possible implications (4). Thereafter, I set out the concrete steps already taken
1 Statute of the Council of Europe, London, 5.V.1949, pp. 46. http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=001&CM=1&CL=ENG, last accessed on 1/04/2013. 2 http://hub.coe.int/
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by the Court to improve its effectiveness (5) and elaborate on the crucial case of
Russia (6). In the penultimate section I present further recommendations made by
scholars to guarantee the Court’s survival as ultimate protector of human rights in
Europe (7). The last part is dedicated to the conclusions.
2. Introduction to the ECtHR
The European Court of Human Rights (ECtHR) was set up in 1959 as an international
court. On January 21st, its first members were elected by the Consultative Assembly
of the Council of Europe. This Council of Europe (CoE) was founded ten years earlier
in London by Belgium, Denmark, France, Ireland, Italy, Luxembourg, the
Netherlands, Norway, Sweden and the UK. One year later, four more countries joined
– Greece, Turkey, West Germany and Iceland. The CoE has its seat in Strasbourg3.
The Court’s first sessions took place on 23 February 1959 and it delivered its first
judgment on 14 November 1960 in the case Lawless v. Ireland. It took off at low pace
with only 837 judgements made by the Court between 1959 and 1998. After the
adoption of protocol 11, the delivery of judgments has increased immensely. The
post-1998 period accounts for more than 90% of all judgments delivered. Almost half
of the cases deal with violation of Art. 6 of the Convention, the right to a fair trial.4 If
we look at the judgments made per member state for 2011, then 4 states account for
more than a third of all judgments delivered by the Court, these are Turkey (15,04%),
Russia (11,5%), Ukraine (9,08%) and Greece (6,3%). In 85% of all judgments the
Court has found at least one violation of the Convention by the respondent state.5 The
increase in delivery of judgments should be put into perspective however. The Court 3 http://hub.coe.int/ 4 http://www.echr.coe.int/NR/rdonlyres/E58E405A-71CF-4863-91EE-779C34FD18B2/0/APERCU_19592011_EN.pdf 5 http://www.echr.coe.int/NR/rdonlyres/4ACC88A2-0336-415D-A904-061BE63EDE8D/0/FAITS_CHIFFRES_EN_JAN2012_VERSION_WEB.pdf
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still lacks manpower to decide on all applications. In 2012, more than 65000 cases
were brought before the ECtHR and it only delivered 1678 judgments6.
It was the enlargement of the Council of Europe after the end of the Cold War that has
caused a tremendous increase in workload for the Court. After the fall of the Soviet
Union, all former communist countries except Belarus joined the Council of Europe,
with Montenegro being the last one that has entered in 2006.7 In a short period of
time, the Court had gone from covering 23 countries to 47. Up to date, it can receive
applications from more than 800 million people. The Court was not ready for this rush
of applicants from the east and therefore introduced new protocols. However, the
problem is not only related to the amount of applications per se, but also to the type of
cases brought against the new member states. Acting as the ultimate protector of
human rights in Western democracies where fundamental rights are – in general -
already respected, is not the same as defending those rights in states that have no
experience with human rights protection whatsoever. This in turn ‘raises questions as
regards the overall operation and legitimacy of the system, as well as of the variable
roles which the Strasbourg institutions reasonably can – and cannot – be expected to
assume in highly divergent national contexts’ (Harmsen, 2010: 29).
Protocol 11 and 14
Protocol 11, that came into force in 1998, reformed the old complaint system in order
to speed up the judging process. A full-time court was established, a three-judge
committee was to decide on the admissibility of an application, a Chamber of 7 judges 6 http://www.echr.coe.int/NR/rdonlyres/ED509815-5E4E-4EC5-8224-A92775B7FB72/0/CMS2012_ENG.pdf 7 http://conventions.coe.int/treaty/Commun/ChercheSig.asp?NT=005&CM=&DF=&CL=ENG
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would hear cases and a Grand Chamber of 17 judges could be convened in
exceptional situations. If a violation was found, then it was up to the Committee of
Ministers to assure enforcement of the decision taken by the Court (Rainey, 2012).
Most important probably, was that it was made much easier for individuals to
complain. Applying to the Court was made simple and virtually cost-free. Yet the
basic requirement of exhaustion of all domestic remedies remained (Stone Sweet &
Keller, 2008).
Unsurprisingly, not much had changed since then and the Court still suffered from a
serious backlog. Protocol 14 aimed at speeding up the majority of cases by targeting
at the admissibility phase. Now, one judge instead of three decides on the
admissibility of an application. An infringement proceeding was introduced too, by
which the Committee of Ministers can undertake action in case of non-compliance
with a Court’s judgment. And a new admissibility criterion was added by Article 35.
From now on, an application can only be admissible if the applicant has suffered a
significant disadvantage (Rainey, 2012).
3. ECtHR and national legal orders
The impact of the ECHR should not be underestimated. Its influence is felt not only
through the individual applicants but also through the impact it has on national legal
systems. No state can fully insulate itself from the Convention’s scope and influence
(Stone Sweet & Keller, 2008).
Looking more into detail at how the Court has influenced national legal orders is
taking into account the term ‘effectiveness’. According to Stone Sweet & Keller
(2008: 6) ‘The ECHR can be said to be effective, domestically, to the extent that
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national officials recognize, enforce, and give full effect to Convention rights and the
interpretive authority of the Court, in their decisions.’ This will be the case when
Convention rights, all other things being equal, (1) bind all national officials in the
exercise of public authority; (2) possess at least supra-legislative status and (3) can be
pleaded directly by individuals before judges who may directly enforce (Stone Sweet
& Keller, 2008). A means to enhance effectiveness is by way of embeddedness. This
requires the bolstering of national or even regional mechanisms to offer remedies to
ECHR violations at home (Helfer, 2008).
When it comes to the fulfilment of the basic requirement for the admissibility of an
application, i.e. ‘exhaustion of all domestic remedies’ things are not as clear as one
might suppose. It appears to be time-consuming and rather difficult to determine
whether all local remedies are exhausted. Three reasons can be given: the organisation
of the national judicial system, the competences of national supreme courts and the
effectiveness of ordinary remedies. There seems to be great variation across European
states (Stone Sweet & Keller, 2008). However, the Court acts pragmatic. If one can
demonstrate that exhausting all local remedies is useless and if the issue is
problematic enough, then it can allow the application. In doing so, the Court can send
a clear signal to member states to reform and improve their human rights protection
(Stone Sweet & Keller, 2008).
Other issues were also found to be problematic. The ECHR should be treated as a
living instrument, which has in the hands of the ECtHR three features: (1) present-day
standards will guide the Court when interpreting the ECHR; (2) these standards must
be somehow accepted by and be common among member states; and (3) the Court
will assign decisive importance to what the member state at hand finds an acceptable
standard (Letsas, 2012). Not only did this have an influence on how the ECtHR
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interprets the Convention but equally on how national supreme courts read it. Member
states have of course the duty to respect the evolving standards of the Convention.
The question that subsequently emerged was: How far should national supreme courts
go in interpreting the ECHR evolutively (Bjorge, 2011)? The initial reactions on the
part of national courts were characterised by constitutional orthodoxy. More recently
however, domestic developments may show rather different outcomes. Focussing on
Germany, France and the UK, Bjorge (2011) demonstrates that member states
nowadays are aware that they should not only be led by Strasbourg but that they must
take the lead themselves. Surely, if a member state expects a certain development to
move the jurisprudence of the ECtHR, then it better be one step ahead and interprets
the ECHR evolutively. Otherwise it might be faulted for not taking into account
‘present-day conditions’ at a later stage by the ECtHR. In doing so, national supreme
courts can in fact take convention rights beyond what the Strasbourg Court has
adjudicated. As Bjorge (2011: 31) concludes, since the ‘state retains a unique
legitimacy in the eyes of the citizens, […] then surely the anchoring of the
development of Convention rights in the legitimacy of the judgments at state level has
the potential of becoming in future years a vital aspect of the system of human rights
protection in Europe’.
4. EU accession to the ECHR
The EU and the Council of Europe are two separate bodies and each have their own
court. For more than over thirty years, a debate has been going on about whether the
EU as an institution could accede the European Convention on Human Rights. Both
the EU as well as the CoE were opposed to this idea for a very long time. However,
things have changed. The Lisbon Treaty gives the EU both the competence as well as
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the obligation to accede the ECHR (Lock, 2010).8 Two reasons can be given for this
change of course taken by the EU. First, human rights have always been Achilles’
heel of the EU. Even after the efforts of the Lisbon Treaty to strengthen the human
rights framework, shortcomings remain. According to de Búrca (2011: 44) the EU
still ‘ lacks a serious and coherent human rights policy and mechanism which applies
also to its Member States, and there is [still] a double-standard existing as between
internally-oriented and externally-oriented activities. [These deficiencies] have
survived these constitutional changes and have to some extent been written into the
Treaty framework’. This is related to the perception that the EU does not take human
rights serious within its territory. This might in turn affect its credibility on the
international scene as well as its legitimacy among its citizens, which is the second
reason. Accession to the ECHR should therefore be seen not only as an altruistic
move but also as a way to respond to these critiques (Johansen, 2012). Protocol 14 on
the other hand introduced a new article 59(2) ECHR that says: ‘The European Union
may accede to this Convention’. More recently, in the Brighton Declaration, the
Committee of Ministers wrote that “accession of the European Union to the
Convention will enhance the coherent application of human rights in Europe. The
Conference therefore notes with satisfaction progress on the preparation of the draft
accession agreement, and calls for a swift and successful conclusion to this work”9.
Notwithstanding the obligatory aspect on the part of the EU, it may take several more
years of ‘political and legal efforts on the part of the EU, the Member States and the
Council of Europe’ (Eckes, 2013: 255). This is indeed what we are witnessing for
some years. On 26 May 2010, the Steering Committe for Human Rights (CDDH) was
given the mandate by the Committe of Ministers of the Council of Europe to develop
8 Art. 6(2) TEU 9 Brighton Declaration, paragraph 36, http://hub.coe.int/20120419-brighton-declaration,
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–together with the EU- a legal instrument for the EU’s accession to the ECHR. On
part of the EU, the European Commission was given the mandate to negotiate on
behalf of the EU Ministers of Justice. After having discussed the draft legal
instruments, the Committee of Ministers instructed the CDDH to conduct negotiations
with the EU in an ad hoc group in order to finalize the accession instruments. Up to
date, these negotiations are not concluded yet.10 When a final Accession Agreement is
ready, the Commission will have to ask the ECJ to give its opinion on it. The latter
has the right to reject the agreement, when it finds it incompatible with the
constitutive treaties of the Union. All in all, the most important steps in the accession
process are already been taken, but it might yet take considerable amount of time to
finalize the work (Johansen, 2012).
Bosphorus case
This case presents an excellent example of how international obligations can collide
and burden EU member states with a dilemma as they have separate obligations and
responsibilities. On the one hand, they need to be subordinate to EU law whilst on the
other hand they need to respect and guarantee their duties under the ECHR (Kuhnert,
2006). In this case, the ECJ had judged that the Irish Minister of Transport had the
right to impound the leased aircraft of the Turkish company Bosphorus Airlines11.
The latter, which was the applicant in the case, went to the ECtHR in order to have
the Minister’s decision examined on the grounds of the Right to have property
respected (Protocol 1, Art. 1 [ECHR]) (Kuhnert, 2006). The main decision of the
10 http://hub.coe.int/what-we-do/human-rights/eu-accession-to-the-convention, last accessed on 3/04/2013 11 For a detailed description of the case as well as the implications for the ECJ and ECtHr, see Kuhnert (2006)
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ECtHR was that it has to presume that the EU offers a sufficient level of protection of
human rights, unless if manifest deficiency is the case. This implies that, in principle,
when acting under EU law, EU member states cannot be held liable before the ECtHR
(Bellekom et al., 2007). However, this is only true in situations where no further
implementation of the member states is required. In other cases, the ECtHR can
review the measures taken at the national level. Thus follows that ‘both primary and
secondary Community law are now subject to review by the ECtHR and EU Member
States can be held responsible for (nearly) all Community acts as they originally
participated in the legislation process as the authors of these acts and are considered
the original legislators of Community acts, and thus responsible for any shortcomings
in this context’ (Kuhnert, 2006: 188). In general however, the Court privileges EU
law since other legal orders that also offer an equivalent level of protection of human
rights are still subject to full scrutiny by the ECtHR (Lock, 2010). The Bosphorus
case also meant a turning point in the way the ECtHR reviews Community Law.
Before this case, it has always declared that it is sufficient in abstracto that an act is
adopted by an international organisation – such as the EU – that provides a protection
of human rights that is at least equal to that under the framework of the ECHR. In the
Bosphorus case however, the ECtHR applied a concrete test to examine the equivalent
protection of human rights at the EU level (Kuhnert, 2006).
The question has been raised by Lock (2010) whether the presumption made in the
Bosphorus case can be upheld after the accession of the EU to the ECHR. By
acceding, the EU will have recognized the competence of the ECtHR to review the
ECJ’s decisions by measuring them by the human rights standards of the ECHR. No
longer can only member states by the sole respondents in the EU arena, but the EU as
an institution as well can be a party before the ECtHR. Johansen (2012) too expects
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the presumption to be abandoned after accession. He sees the removal of this
privilege as a means to increase effectiveness of the ECHR control system. Other
parties to the Convention could also see it unfair not to be treated like the EU, since
their Constitutional courts may also provide for ‘equivalent protection’ (Lock, 2010).
In accordance with what we have said before, the accession process is one that
requires patience. Both technical and political difficulties have arisen during the
negotiation process, but none of these are expected to be too severe to prevent a
conclusion of an agreement. In a recent paper Martín and De Nanclares (2013) further
conclude that accession offers both parties an opportunity rather than a risk. The
ECtHR is given the chance to consolidate the system of the ECHR as the ‘supreme
order in the European continent entrusted with the external scrutiny of compliance
with fundamental rights both with respect to its 47 Member States and the most
developed supranational international organisation in existence’ Martín and De
Nanclares (2013: 17). If the EU accedes to the ECHR, this would entail the EU to be
treated in the same manner as the other contracting parties, which are states. This
would have important consequences for the EU’s legal order as it would be placed
under international law by the ECHR and it would be bound by the interpretation
given to it by the ECtHR (Eckes, 2013).
According to Johansen (2012), this is one of the most important improvements of
accession. He describes it as ‘a significant development towards ensuring an equal
and effective protection of human rights throughout the European continent –
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regardless of whether the policy decisions are made at the national or supranational
level (Johansen, 2012: 121-122).’12
5. Steps taken by the ECtHR to overcome the crisis
In order to deal with the enlargement it has witnessed the last two decades, the
ECtHR has two other instruments at its disposal to protect human rights in times of
crisis more effectively. The first one is related to the crisis of success the Court
suffers from, i.e. the overload of applications. Together with the drafting of Protocol
No.14 the idea emerged to introduce a mechanism by which repetitive cases can by
handled all at once instead of sticking to the case-by-case approach (Buyse, 2009). In
a resolution from 2004, the Committee of Ministers of the CoE declared that it ‘recalls
its mission to take measures in order to guarantee the long-term effectiveness of the
control system instituted by the Convention’ (Council of Europe 2004). Since then, the
Court has started to adjudicate ‘pilot judgments’. The Strasbourg Court receives several
hundreds of cases that can all be traced back to one and the same structural problem.
Using pilot judgments, the Court singles out one case and the respondent state is
demanded, by adjudicating a general measure, to resolve all other comparable cases
(Buyse, 2009). This should reduce the Court’s workload in two ways: directly by
demanding resolution of all comparable cases and indirectly because this demand will
hopefully lead to national reform (O’Boyle, 2011). Oppedal has studied thirteen pilot
judgments and concludes that the Court has taken a formal step in ‘constitutionalising the
human rights protection under its jurisdiction’ (Oppedal, 2011: 94). As for the political 12 Not everyone agrees on this. Pavone (2012) examined the legal order pre-Lisbon and came to the conclusion that it was ‘actually an extremely functional institutional and legal system that provided for the uniform development of European human rights law. It was characterized by a functional division of labor between the ECJ and the ECtHR that also provided private litigants with an opportunity to forum shop. Further, the two Courts developed customary practices to ensure both inter-court comity and interpretational convergence, creating a uniform body of human rights law. Therefore, I conclude that the EU’s accession to the ECHR is mostly a symbolic and political reform rather than a substantive legal one’ (Pavone, 2012: 1).
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consequences, instead of addressing human right issues on an individual basis, the
ECtHR now leaves little space for imagination, ordering a direct legal obligation, that the
member states have to guarantee that what they do domestically is in conformity with the
ECHR as well as with the principles established in the Strasbourg’s case-law (Oppedal,
2011). He further notices that the system of pilot judgments has significantly narrowed
the so-called ‘margin of appreciation’13 that has been given to member states.
Interim measures are another instrument the Court uses. Unlike pilot judgments, these
measures serve to resolve a critical situation as soon as possible. They are to prevent
‘irreparable damage to persons who are in a situation of extreme gravity and urgency,
i.e., whose rights and freedoms under the European Convention on Human Rights
(ECHR) are likely to be violated in case a certain disputed state action is pursued’
(Haeck, Burbano Herrara & Zwaak, 2011). Concretely this means they serve ‘to stay
death penalties, to guarantee detainees a dignified treatment (while at the same time
induce the latter to end their possible hunger strike), to suspend the transfer of
detainees from the authority of the military authority of one country to the judicial
organs of another country, to stay extraditions or expulsions to member States or third
countries, struck by war or internal conflict or to post-conflict countries or areas’
(Haeck & Burbano Herrara, 2010). However, these measures are limited in time and
scope. They are only provisional. Indeed, most cases where an interim measure has
been adopted do not pass the admissibility stage. And once an application has been
declared inadmissible, the interim measure loses its validity (Haeck & Burbano
Herrara, 2010). A more structural problem is the finding of non-compliance to these
measures by member states. The number of cases where states don’t abide is growing
13 http://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/echr/paper2_en.asp
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and some of the founding fathers of the system are to blame too; it is not only a case
of CEECs (Haeck, Burbano Herrara & Zwaak, 2011). A number of recommendations
are being made: The ECtHR could provide a one-page reasoning for the interim
measure; the instrument of interim measure should receive a legal basis; and the CoE
should urge member states to adopt additional legislation to streamline their domestic
systems when dealing with interim measures. This is to further embed these measures
into the national legal systems, add to the credibility of the ECtHR and render it more
effective (Haeck, Burbano Herrara & Zwaak, 2011).
6. The case of Russia
Russia ratified the Convention on 5 May 1998 and thereby became member of the
CoE. Russian citizens and lawyers needed some time to get familiar to the procedural
aspects and the admissibility criteria of the applications. Up until mid-2001, not a
single Russian application was admitted (Abdel-Monem, 2004). After this ‘training
period’, which involved many international lawyers coming to Russia to get their
Russian colleagues get used to the legal mechanisms of the ECtHR, Russian human
rights attorneys got more skilled in applying. As from 2002, the Court has routinely
admitted cases brought against the Russian state and in most of them it found Russia
liable for violations of the protection of life, the prohibition of torture and inhuman
treatments and others (Lapistkaya, 2011). Although Russia was the state that
accounted for the second-most judgments made by the Court in 2011, still a great
number of applications were declared inadmissible. More than 40 300 applications
were made, 12 223 of them were struck out on the admissibility criteria and only 199
judgments were delivered14.
14 Idem 4
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At first glance, Russia seems to comply with the punishments imposed by Strasbourg.
When found liable for a violation, the respondent state is normally obliged by the
Court to provide the victim with a ‘just satisfaction’, i.e. money. Russia’s answer to
its judgments has largely been one of prompt payment of these compensations.
However, in doing so, Russia deters the CoE from taking actions against the state and
it buys itself time ‘to implement several domestic “measures” designed to curtail its
nationals’ access to the Court’ (Lapistkaya, 2011: 493). It has done so by intimidation
of ECHR applicants, their attorney as well as human right activists. Moreover, it also
failed to conduct satisfactory investigations of human rights violations. The delay of
its ratification of Protocol No. 14 can also be understood in this light (Lapistkaya,
2011).
In addition to the payments in the light of ‘just satisfaction’, the Court also demands
respondents states to take internal measures in case compensation does not
countervail the damage imposed on the victim as well as general measures in order to
prevent similar human right violations in the future.15 What concerns individual
measures, this entails the state to do whatever is possible to assure ‘restitutio in
integrum’. Arriving at the latter may involve reopening of domestic proceedings,
revoking a deportation order, destroying information gathered while breaching the
right of privacy.16 General measures, on the other hand, entail an obligation to put an
end to the continuing human right violations as well as to prevent them from taking
place. That's where the shoe pinches, since Russia continuously fails to implement
15 2009 Committee of Ministers Report, supra note 69, at 18 16 2011 Committee of Ministers: Supervision of the Execution of Judgements of the European Court of Human Rights, 4th Annual Report, 2010, Available at: http://www.coe.int/t/dghl/monitoring/execution/Source/Publications/CM_annreport20 10_en.pdf
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measures to offer a better human rights protection. The ever-increasing number of
applications brought against it can be proof hereof (Lapistkaya, 2011). Recently
however, a wary form of optimism was the Parliamentary Assembly’s share. On 22
June 2010, for the very first time since Russia became a member, a report and
resolution condemning Russian actions in the Northern Caucasus passed a unanimous
vote17. Although this may be another move from the Kremlin to disguise other
intentions, it is at least a positive signal and according to Bowring (2010) there are a
couple more of them to be noticed. He mentions two federal laws that came into force
as to respond to ECtHR demands. One deals with compensation for citizens for
violation of the right to a fair trial within reasonable time or the right to execution of a
judgement within a reasonable time.18 The second one requires all Russian courts to
render public their judgments and decisions on the Internet, which can be seen as a major
step forward (Bowring, 2010).
7. Future of ECtHR and further recommendations
Recently, a lot of debate has been going on about what the ECtHR can or should do.
Some authors and judges have taken a radical stance against the Court, saying that it
lacks constitutional legitimacy and therefore cannot impose obligations upon states19.
However, O’Boyle (2011) writes that this claim has nothing to do with
constitutionality but rather with basic dislike and rejection of the fact that the
Strasbourg Court has got the competence to review national supreme courts’ decision
in cases concerning human rights. He also disapproves this rejection because it
17 http://assembly.coe.int/ASP/NewsManager/EMB_NewsManagerView.asp?ID=5701 18 It has to be remarked that Oppedal (2011) used this case in his study too. The selection of cases determines the outcome. Selecting cases in which the pilot judgments had a positive effect on human right protection obviously influences the results and conclusions of one’s study. 19 See for instance: Hoffmann, Leonard (2009) ‘The Universality of Human Rights’, Law Quarterly Review, 416. pp. 428-‐429.
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neglects the initial goal of the Convention, namely the collective guarantee of human
rights.
Scholars have given several additional recommendations the ECtHR should take into
account for if it wants to continue to play a significant role in the protection of human
rights. These include filtering measures (1): impose a modest fee on applicants, so
that they will think twice before applying. Set up an assisting body to the Court that
can decide on the admissibility of cases. A combination of both unpopular measures
could give the Court the opportunity to focus on the serious applications (O’Boyle,
2011). National measures (2): it is of utmost importance that states integrate the
Convention into their national legal systems and practice (O’Boyle, 2011). Indeed, a
responsible attitude of national states to the ECtHR is a crucial requirement for its
future success (Helfer, 2008). This opinion is widely accepted and also made it to the
Brighton Declaration of 20 April 2012. Paragraph 9a repeats that the Conference
therefore ‘Affirms the strong commitment of the States Parties to fulfil their primary
responsibility to implement the Convention at national level’20. Promote dialogue
between the Court and national courts (3) for instance through an advisory opinion
procedure. Indeed, ‘experience from EU law has shown that the preliminary ruling
system, mutatis mutandis, has proved to be a useful instrument for laying down
fundamental principles of interpretation’ (O’Boyle, 2011: 1874).
Others, point at the notion of procedural justice21 as a principle that should be
20 http://hub.coe.int/20120419-brighton-declaration 21 ‘Its central empirical finding is that in people’s contact with the law, they care not only about the outcome of their case, but also about the way in which it is handled.2 In fact, the perception of procedural justice (was the case dealt with in a fair manner?) is a more sig- nificant factor determining the perception of the legitimacy of the institution concerned, than the perception of distributive justice (was the outcome of the case fair?)’ (Brems & Lavrysen, 2013: 177)
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enhanced under the framework of the ECtHR (4) because it contributes to the feelings
of self-worth for the individuals concerned. Attention to procedural justice concerns
could, according to Brems & Lavrysen (2013: 182) ‘strengthen the position of human
rights adjudicating bodies and their ability to adequately protect human rights by
contributing to compliance and legitimacy’. Furthermore, the delivery of procedural
justice might be crucial in the protection of minorities against the abuses of majority
rule by the dominant group in society or state. Then how might the Court promote
procedural justice? First of all, it should pay great attention to the basic elements of
the principle, being: participation, neutrality, respect, and trustworthiness. It can do so
in its judgments. For the purpose of this article it is unnecessary to elaborate on all
four. Instead, I shall explain the notion of participation and how the Court can
promote it. The Court should make sure to allow all parties to make their argument
and to let their viewpoint be represented in the judgment. When one party’s viewpoint
is overruled, it should give argumentation for why this is the case. Further, it must
take into account viewpoints of stakeholder that are not formal parties in the case, one
might think of NGOs. The judgment will have authority beyond the parties and thus
beyond the respondent state, citizens from all 47 member states may expect to see
their concerns taken seriously by the Strasbourg Court (Brems & Lavrysen, 2013).
The idea behind this recommendation can also be found in Keller, Fischer and
Kühne’s suggestion to introduce a new provision to the rules of the Court that renders
its handling of manifestly ill-founded applications more transparent. Since they are
the main reason for the overload of the Court, it is important to find solutions in this
area (Keller, Fischer & Kühne, 2010).
Apart from procedural justice in the Court’s judgments it should also be promoted in
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domestic legal orders. One way of doing so is to include an appreciation of the extend
to which it has been done at the national level in Court reviews. Serious shortcomings
of procedural justice, in those cases touching Convention rights, should then
automatically lead to the finding of a violation (Brems & Lavrysen, 2013).
8. Conclusions
The European Court of Human Rights is a remarkable institution. More than 800
Europeans have the right to individually send their application to the Court when they
feel their fundamental rights are being violated. However great this is, the Court does
not have the manpower nor the will to effectively deal with every single application.
Adoptions of Protocols No. 11 and 14, as well as the introduction of pilot judgements
were aimed at speeding up the judgment process as well as decreasing the amount of
applications. Interim measures, on the other hand, were adopted to act fast whenever
someone is in a critical situation. The ‘crisis of success’ the Court suffers from is also
related to the non-implementation of measures demanded by Strasbourg. In this paper
I tried to give an overview of several possible recommendations and developments
the Court could take into account in order to effectively protect and develop human
rights across the full range of current Council of Europe member states. What I find
striking however, is that none of the scholarly works I have examined offers an
integrated recommendation/approach. All of the recommendations mentioned in this
article can all be part of the solution to the crisis, but better is to combine them. EU
accession to the Convention could for instance evoke more pressure on EU member
states to comply with the internal measures imposed by the ECtHR. This is of utmost
importance because the non-compliance of some of the founding fathers of the
Convention is worrisome. However, formal compliance or de jure improvements are
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not enough. Rules must also be complied with de facto. On the other hand, the finding
that certain member states in fact take convention rights beyond what the Strasbourg
Court has adjudicated should be welcomed. Pilot judgments have already proven to be
useful and are likely to continue to do so.
Although I do not put much faith in the ECtHR’s ability to make countries like Russia
comply to its decisions by ‘force’, I do believe that if the Court can assure and
improve its credibility and legitimacy for instance by taking into account procedural
justice and by promoting dialogue with national courts, Russian society, and by
extension, polity, can become more and more aware of what should be done
domestically. Therefore, when Mendelski (2012: 38) concludes that respect for rule of
law should be “founded upon a broad, bottom-up social–educational movement that
alters values and respects rules as well as creates them”, this might equally true for
ECHR compliance. Indeed, a top-down approach does not seem to be the solution.
EU accession to the ECHR can play a role in this process too, albeit more indirect. If
Russia’s neighbouring countries such as Ukraine will be further pushed to respect
Convention rights, a spill-over effect (however small this might be) might occur. If
however the Court wants to follow Lapitskaya’s advice to put more pressure on
Russia by lodging an interstate complaint and to subject its actions to rigorous
scrutiny, then this should be happening in an inclusive manner, treating it as an equal
contracting party rather that the one to blame.
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