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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Others: European Convention on Human Rights as amended by Protocols Nos. 11 and 14. http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/Convention_ENG.pdf Council of Europe. 2004"Resolution Res (2004) 3 of the Committee of Ministers on judgements revealing an underlying systemic problem", Available at: https://wcd.coe.int/wcd/ViewDoc.jsp?id=743257&Site=CM [22.05.2011]."