Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

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petitioner is entitled to file a request, supported by special circumstances, to receive a waiver or reduction of fees.

The Venice Commission recommended that in view of increasingly more comprehensive human rights protection, court fees for individuals ought to be relatively low and that it should be possible to reduce them in accordance with the financial situation of the applicant. Their primary aim should be to deter obvious abuse.

The CCDH has not yet taken a stand on fees. It did consider that if they were introduced, then whatever form they take, they will have the effect of deterring at least some meritorious applications.62 Fees would have to be differential, to take into account the very different salary levels and costs of living in different states. Moreover, some form of waiver system would seem to be necessary, as otherwise it would remove Convention protection from the very people who need it most: the poor. All of this will be time-consuming, and probably costly, to administer.

In any event, bearing in mind the Venice Commission study, fees would have to be set at a low level. The problem will be that, in this case, a fee is unlikely to deter the present flood of applications from Russia and the Ukraine (and possibly, Turkey), because, simply put, many applicants will reason that paying the fee to the ECtHR is worth it; at least one has a chance of justice, and compensation, in Strasbourg. Thus, fees are unlikely to have a sufficiently significant reducing effect on unmeritorious applications. The Court has expressed its opposition to fees. After Izmir, the idea appears to be dead.63

6.4 Legal representation

As regards the proposal that legal representation be mandatory, this, too, is meant to cut down on unmeritorious applications. The idea is that the lawyer, by referring to the admissibility guides produced (above, section 2) should act as a filter. The position as regards applications to constitutional courts in Council of Europe states varies. It is

62Compare ECtHR, Mamatkulov and Askarov v. Turkey (Appl. Nos. 46827 and 46951/99), Judgment (Grand Chamber), 4 February 2005, Reports 2005-I, para. 102: ‘…applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints’.

63ECtHR, ‘Preliminary Opinion’, para. 30. The same can probably be said for the idea that a sanction be introduced for ‘obviously futile’ applications. See Council of Europe, ‘Report’, CDDH (2011) R73 73rd meeting, 6–9 December 2011, www.coe.int/t/dghl/standardsetting/cddh/Meeting%20reports%20committee/73_en.pdf, appendix IV.

obligatory in Andorra, Austria, Azerbaijan, Czech Republic, France, Italy, Luxembourg, Monaco, Portugal, Slovakia, Spain and Switzerland (if the individual is ‘clearly unable’ to represent himor herself). No such obligation exists in Albania, Armenia, Belgium, Croatia, Estonia, Georgia, Hungary, Latvia, Liechtenstein, Poland, Romania, Russia, Slovenia, Sweden, Switzerland, The former Yugoslav Republic of Macedonia and Ukraine.64

In practice, many applicants to the ECtHR are already represented by lawyers.65 If and when an application reaches the stage of being reported to the respondent government, this is almost invariably the case. A mandatory requirement to employ a lawyer is likely in practice to cost applicants more, or much more, than a fee system. Thus, the same objections of principle apply to it. Moreover, it is no guarantee of the quality of the application. There is no indication that the admissibility rate of applications introduced through a lawyer is significantly higher. Even where a lawyer does counsel against making an application, the complainant does not have to listen. Again, the Court is opposed to this idea, which now appears to be dead.66

6.5 Advisory opinions

The idea behind advisory opinions here is that national supreme or constitutional courts could be given the possibility to refer a case to the ECtHR, which in turn would have discretion to take up the request. There are several potential advantages to such a system.67 It would be in keeping with the principle of subsidiarity and the idea of multilevel protection of rights,68 as it would institutionalise dialogue between the ECtHR and national courts and emphasise the cooperative nature of the ECHR enterprise. The national court would feel more ‘ownership’ of the issue, and, hopefully, a high degree of willingness to implement the (non-binding) advisory opinion, as it had chosen to refer the question in the first place.

64Ibid.

65Although some high-count countries, such as Poland, have a relatively low proportion of cases submitted through a lawyer.

68A. Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund’, European Constitutional Law Review 6 (2010) 175–98.

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Advisory opinions are in a sense a natural consequence of the ECtHR’s assertion (accepted by the states parties in the Interlaken Declaration) that states must take into account judgments affecting other states, not simply judgments against their own state. However, this can be easier said than done, because it involves ‘translating’ a ‘foreign’ judgment to one’s own national context. The ECtHR might have found law W or practice X in State Y in violation of the Convention because of factors Z1–Z6. But what are the exact implications of this for a national supreme court in State A, which has a similar, but not identical, law or practice? An advisory opinion can help clarify this situation.

Historically, the ECtHR tended to approach the issues raised by cases in a narrow fashion, unlike the European Court of Justice (ECJ) (now Court of Justice of the European Union, CJEU) which, through relatively abstract preliminary rulings, deliberately tries to lay down general interpretative guidelines for national courts. Nowadays, there are much clearer indications that the Court is attempting to lay down clearer, uniform standards of interpretation of the Convention for domestic courts. This is seen, inter alia, in how the Court now tends to begin its assessment of the legal issues in a case: by sketching out the applicable principles which apply generally to the area, these having been distilled from its earlier judgments.

On the other hand, there are a number of question marks. The first of these is whether advisory opinions would strengthen or weaken the ‘constitutional’ nature of the ECtHR. If the issuing of a non-binding opinion would exclude later concrete applications concerning the ‘same’ issue, then this would undoubtedly weaken the Court. But even if this is not the case, and the intention is to strengthen the Court, the next question is: do we want to do this? What the Court does just now is to decide in a concrete case whether a state has got the balance ‘right’. Giving it the power to rule more in abstracto will involve it doing something different. There is also, for EU members, the question of whether we need, or can have, two courts – the ECtHR and the CJEU – both issuing more in abstracto rulings.69

The second question mark is the more practical issue of the work this would involve for an already overworked ECtHR. The third is that there is already a mechanism for informing the ECtHR that a pending case has

69I look at the different approaches of national constitutional courts, the CJEU and the ECtHR in more detail in ‘Competing Rights?’, in S. de Vries, S. Weatherill and U. Bernitz,

The Protection of Fundamental Rights in the EU after Lisbon (Oxford: Hart Publishing, 2013).

implications for other states with similar laws and practices, namely, amicus curiae briefs. Admittedly, this comes in at the stage of a pending case, although it can also be by way of an appeal to the Grand Chamber. As already noted in the Introduction, ten states handed in amicus curiae briefs in the Lautsi case. One can also say that this mechanism would duplicate a mechanism which already exists within the Council of Europe, in that the Venice Commission today receives, and replies to, requests for amicus curiae briefs from national constitutional courts.

An advisory opinion is obviously designed to influence a state, even if it is, formally speaking, non-binding. A prerequisite for making a system work is that the national constitutional or supreme court genuinely is interested in hearing the opinion of the ECtHR. This should not be taken for granted, even (or especially?) in states with well-functioning national systems for the protection of human rights. Unless advisory opinions are given first priority, there will be considerable delays, and no court wants to wait on another. Even if advisory opinions are introduced, it is likely that a period of ‘confidence-building’ will have to elapse before national supreme and constitutional courts start asking for them. This period will vary according to the judicial culture of the state in question. The EU preliminary reference procedure is now so well established that it is easy to forget that it took considerable time for the courts in several EU states to overcome their natural reluctance to involve another ‘foreign’ court in ‘their’ business.

It is also important to understand that advisory opinions, whatever other advantages they might have, are not a solution to the case overload problem. For advisory opinions to have a genuine impact on the national legal culture, an implicit prerequisite is that the national supreme or constitutional court is powerful enough to impose its will on the executive or legislature. In my opinion this is not, at present, the case in at least two (possibly three) of the highest-count states.

Despite the unanswered questions, the Brighton Declaration paragraph 12(d) commits the states to produce, by the end of 2013, a draft additional protocol providing for an option for states to request advisory opinions.

6.6 Filtering again

Very briefly, as regards a new filtering mechanism, little need be added to the discussions in sections 3 and 4. The CCDH is currently discussing three options: national judges ad litem, creating a new specialist type of

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judge for filtering, and strengthening the Registry in different ways. The first two options are close to each other, and both possess the benefit of flexibility (the number of such judges could be adjusted as needed). Both would mean a judge with judicial qualifications, but not necessarily ‘qualified for high judicial office’, a much shorter period of office, and chosen after a quick selection process. Bearing in mind the boring nature of the work, the short period of office may make it more attractive, although in terms of efficiency, as it will take time to learn the work, the period must not be too short.

I do not see the value of either of these options. The option of strengthening the Registry requires no amendment of the Convention and – to my mind – seems the most cost-effective, the quickest and the most flexible option. But formally recognising that the Registry can decide on clearly inadmissible cases would require amendment of the Convention, even if this is the reality of the present situation.70 There is agreement in the CCDH, even among those that are in favour of the Registry option, that the Registry’s competence should be limited to clearly inadmissible cases and that it should not deal finally with repetitive cases.

The Brighton Declaration (para. 20(e)) provides that a decision on whether to amend the Convention to provide for some such system should be taken by the end of 2013.

6.7 Subsidiarity and proposed changes to processing and admissibility

In the earlier drafts produced by the UK government prior to the Brighton Conference, the powers of the Court were to be cut significantly by an amendment to the Convention providing that applications should be classed inadmissible unless a national court ‘erred’ in interpreting the Convention.71 However, the final text of the declaration was much watered down. Subsidiarity and the margin of appreciation are to be written into the preamble to the Convention (para. 12(b)), something which is likely to have only symbolic importance. Instead of putting all the blame on the Court, the Brighton Declaration follows the Interlaken Declaration by stressing that responsibility for cutting down on

70Arguably, one could say that the ‘judicial scrutiny’ requirement could be fulfilled by employing people qualified for judicial office to the Registry and giving them security of tenure and the other necessary guarantees of independence etc.

71www.guardian.co.uk/law/interactive/2012/feb/28/echr-reform-uk-draft.

inadmissible applications and dealing effectively with repetitive applications is placed primarily on the states parties.

As already pointed out (above, section 4.4), as the main problems are caused by a small number of states, the need for further changes in the institutions and procedure of the Court will depend very much on whether they do what they are supposed to.72

A particular concern expressed in the context of the Izmir Conference was the increased inflow of requests for interim measures under Rule 39 of the Rules of Court. The Court had, during 2009 and 2010, accepted applications for issuing interim measures in urgent deportation cases where the documentation was not complete. It did so out of concern for applicants faced with – possibly – irrevocable damage to their interests. However, the number of such applications exploded, and so the Court, in effect, created a lot of extra work for itself, as well as irritation in several states parties which were ordered not to carry out (well-founded) deportations. Thus, in 2011, the Court reorganised its internal set-up for dealing with these urgent requests and changed its procedures at both the judicial and administrative level, requiring complete documentation. It also revised its practice direction, and, through its president, made a public statement on the situation.73

The Brighton Declaration goes beyond both Interlaken and Izmir in making undertakings to amend two of the admissibility grounds. These are designed to cut down on the number of applications. The first of these is to introduce a tighter time limit during which the applicant can complain to the Court, reducing it from the present 6 months from the date of final decision, to 4 months (para. 15(a)). This proposed amendment to article 35(1) might seem radical, but the Court itself suggested it.74

The second proposed amendment is to remove the words ‘and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal’ from article 35(3)(b). As already indicated (above, section 4.3), the present wording of the article means that ‘minor’ violations which have nonetheless not been duly considered by domestic courts, cannot be dismissed on this ground. This

72Compare A. Mowbray, ‘The Interlaken Declaration: The Beginning of a New Era for the European Court of Human Rights?’, Human Rights Law Review 10:3 (2010) 519–28, at 528.

73www.echr.coe.int/NR/rdonlyres/B76DC4F5-5A09-472B-802C-07B4150BF36D/0/ 20110211_ART_39_Statement_EN.pdf.

74ECtHR, ‘Preliminary Opinion’, para. 37.

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amendment means, in effect, that the Court can choose not to take up cases concerning ‘minor’ violations, even from states parties where there are structural deficiencies in local remedies.

The Court is also ‘invited to develop its case law’ in a number of ways. One of these is to interpret the exhaustion of domestic remedies so as to require an applicant, where a domestic remedy was available to them, to have argued the alleged violation of the Convention rights or an equivalent provision of domestic law before the national courts or tribunals, thereby allowing the national courts an opportunity to apply the Convention in light of the case law of the Court (para. 15(g)). The Court is also encouraged to use the manifestly ill-founded ground to dismiss applications which have been duly considered by a domestic court (para. 15(d)). These are both things the Court already does (see further below, section 7).

Finally, as regards processing, one possibility of speeding up consideration of cases is to allow the Court to decide more cases in committee form. This means a more expansive interpretation of ‘well-established case law’, the meaning of article 28(1). Here there is a delicate issue of state sovereignty. An issue may be well established in case law dealing with other states. But is it exactly the same issue? The ‘translation’ problem (above, section 6.5) again raises its head. The Court itself may consider that its case law has some form of erga omnes effect.75 But some (or many?) of the states parties still have concerns in this respect. At any rate, the Court is requested to consult with the states parties in how it applies article 28(1), and to ‘bear in mind the non-binding character of judgments against another State Party’ (para. 20(f)).

In my view, none of these proposed Convention changes or ‘developments’ in the case law are particularly problematic for the Court. There is, however, unlikely to be unanimity among academics on the desirability of the proposed change to article 35(3)(b), reflecting the continuing debate on the role of the Court (constitutional/international) for the protection of even ‘minor’ human rights in Europe.

6.8 Consistency of case law

One of the criticisms directed against the Court prior to the Brighton Declaration concerned the consistency of its case law. A Court divided

75See, e.g., ECtHR, Opuz v. Turkey (Appl. No. 33401/02), Judgment (Third Section), 9 June 2009, Reports 2009, para. 163.

into five chambers (perhaps seven in the future) delivering over 2,000 judgments a year, is bound to experience consistency problems.76 As noted above (section 6.5) the ‘translation’ problem can make it difficult for a national court to understand what is required of it. This is exacerbated when the Court has decided cases from various states involving similar fact situations in (slightly or considerably) different ways, without sufficiently explaining the reasons for the differences in treatment. One can argue that a more open presentation of why cases are being ‘distinguished’ would be advisable. At the same time, the Court might naturally want to leave itself room for manoeuvre in future cases. And it might not want to be too specific about why it treats state A differently from state B (A’s safeguards are working in practice, B’s are not). Moreover, it is not, ultimately, the Court’s job to lay down one ‘uniform’ interpretation of the Convention, and the states parties certainly do not want it to do so. It is thus no easy matter to square the circle of clarity and consistency in the case law (demanded by the states parties) with the square of the margin of appreciation (also demanded by the states parties).

The Brighton Declaration notes that the Court is considering amending its Rules of Procedure to require chambers to relinquish jurisdiction to the Grand Chamber. This, in turn, means that parties to the case should not be able to object to this (as at present they have the possibility to do). Accordingly, the Declaration (para. 25(d)) proposes that an amendment to article 30 be adopted by 2013, removing the words ‘unless one of the parties to the case objects’. In the meantime, states parties are encouraged to refrain from objecting to any proposal for relinquishment by a Chamber. The Court is also invited to consider whether the composition of the Grand Chamber would be enhanced by the ex officio inclusion of the vice presidents of each section (para. 25(e)).

7. Legitimacy problems and concluding remarks

In this concluding section, I return to the legitimacy issue I took up in the Introduction, and make a number of concluding remarks.

76Compare the number of judgments (approx. 100) given every year by the US Supreme Court. For an example from the ECtHR, see Morel v. France (Appl. No. 54559/00), Decision (Second Section), 3 June 2003, Reports 2003-IX, where a chamber found that a 10% tax surcharge did not fall under the criminal head of art. 6. This was not in accordance with other case law, and caused confusion until clarified by the Grand Chamber in ECtHR, Jussila v. Finland (Appl. No. 73053/01), Judgment (Grand Chamber), 23 November 2006, Reports 2006-XIV.

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Barkenhysen and van Emmerik argue that the legitimacy of the ECtHR can be challenged on the basis that it rarely holds hearings with the applicant, it only gives very brief reasoning in admissibility decisions, there is no right of appeal against these, that the conclusions of pilot judgments are sometimes applied in cases which are not legally identical and the proceedings before it are very lengthy.77 They add that, after Protocol 14 has entered into force, these problems are exacerbated on the basis that admissibility decisions are in practice being taken by the Registry, the new admissibility ground is unclear, and that the applicant (unlike the respondent state) cannot object to the pilot judgment procedure being applied to him/her. I will not deal with their points on the pilot judgment procedure, but I will take up the other points below.

It is difficult to disagree with Barkenhysen and van Emmerik that admissibility decisions are subject to huge delays and are often not reasoned well, or at all; nor that the Registry, in practice, is determining inadmissibility. What an applicant can receive after three or more years is a short decision, of which perhaps only two sentences are ‘operative’, and which may well be a simple assertion ‘no violation of the Convention is disclosed’. In the circumstances, one can indeed ask: what is the added value in Strasbourg? If legitimacy is to be measured on the basis of whether the aggrieved individuals who applied to the Court are any less aggrieved after having done so, then I guess that the Court’s legitimacy is near zero. Would this near-zero legitimacy be improved if the Court offered every applicant an oral hearing, and the possibility of an appeal against an inadmissibility decision? Perhaps, but I doubt it. Most applicants want a result, not ‘no’ after a fair and – perhaps extremely – lengthy procedure.78

One can argue that the ‘reasoning deficit’ in admissibility decisions has now been corrected, at least partly, by the publication of the detailed guide to admissibility (above, section 3). But more importantly, I think there are other ways of viewing the legitimacy of the Strasbourg system, its (alleged) loss of legitimacy and, if so, how it can go about recovering this.79

77T. Barkhuysen and M. van Emmerik, ‘Legitimacy of European Court of Human Rights Judgments: Procedural Aspects’, in N. Huls, M. Adams and J. Bornhoff (eds.), The Legitimacy of Highest Courts’ Rulings (The Hague: T.M.C. Asser Press, 2009), (hereinafter Barkhuysen and van Emmerik, ‘Legitimacy’), at 442–3.

78Both are utterly impracticable proposals as far as admissibility is concerned, although they are more feasible for decisions on the merits.

79If, indeed, we can accurately measure legitimacy at all. Compare R. de Lange, ‘Judicial Deliberations and Human Rights Adjudication’, in Huls, Adams and Bornhoff (eds.), The Legitimacy of Highest Courts’ Rulings at 465.

Much of the debate concerning the Court’s legitimacy is framed in terms of a choice between a ‘constitutional’ court or a court which dispenses individual justice.80 One’s approach to this issue is strongly affected by the judicial system one is most familiar with. A supreme court which accepts all appeals on ‘points of law’, such as the French Cour de Cassation, can be said to possess a high level of legitimacy in the sense, first, that it has fuller control over lower courts (and so can enforce its views on them) and, second, that it provides answers to a wide spectrum of legal queries. The fact of mass production means that its ‘argumentive’ or ‘discursive’ legitimacy (i.e. the persuasiveness of its reasoning) will inevitably be less, but this might be seen as of less importance.81

Another point made here, often associated with NGOs, relates to the level and seriousness of human rights violations in the three highestcount states, Russia, Turkey and Ukraine. The ‘constitutional court’ option can be viewed as an abandonment of the victims of human rights violations in these three states in particular, and so a denial of the raison d’être of a human rights court, established for the very purpose of addressing human rights violations.82 Faced with the argument that the flood of cases will never stop, the response is that improvements are being made, shown, inter alia, by the recent improvement in remedies in Turkey, and that the creation of a Rechtsstaat is a slow process.

An argument can be made that giving the Court the option to pick and choose between cases would, according to some, involve it in moving

80Amongst many authorities, see I. Cameron, ‘Protocol 11 to the ECHR: The European Court of Human Rights as a Constitutional Court?’, Yearbook of European Law 15 (1995) 219–62; S. Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge University Press, 2006) at xv and passim; E. Bates, The Evolution of the European Convention on Human Rights: From its Inception to the Creation of a Permanent Court of Human Rights (Oxford University Press, 2010) 436–72; and J. Christoffersen, ‘Individual and Constitutional Justice: Can the Power Balance of Adjudication be Reversed?’, in J. Christoffersen and M.R. Madsen (eds.), The European Court of Human Rights between Law and Politics (Oxford University Press, 2011) 181–203, at 187–90.

81A. Pinna, ‘Filtering Applications, the Number of Judgments Delivered and Judicial Decisions by Supreme Courts: Some Thoughts Based on the French Example’, in Huls, Adams and Bornhoff (eds.), The Legitimacy of Highest Courts’ Rulings at 181–2. She adds an argument that, from a common law perspective one can only describe as bizarre, namely, that it is the solution which counts, much less its external motivation. As controversial decisions will always be controversial, it does not really matter how well they are motivated (at 185).

82See, e.g., P. Leach, ‘Access to the ECtHR – From a Legal Entitlement to a Lottery?’,

Human Rights Law Journal 27 (2006) 11–25.