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

the court and the member states: procedural aspects 27

Turning now to Protocol 14, this was designed primarily to increase the amount of time the judges have available for important cases, first by making it easier to dismiss applications and second, by simplifying treatment of repetitive cases. Many people wanted to go further with Protocol 14, and create a proper ‘constitutional court’ for Europe, with the power to choose freely which cases it wished to take up. Others stressed the continued need for a court to which anyone whose rights had been violated could apply for justice, especially bearing in mind the continued poor state of national rights protection in many of the new member states. Protocol 14 is thus a compromise between these two competing goals. It was evident even when it was adopted that it could not solve the problem of the continually increasing caseload. As is well known, due to obstruction tactics from the Russian Parliament,8 it was 1 June 2010 before this protocol entered into force. This delay added to the Court’s pending cases: on 31 October 2011, it had 153,850 applications allocated to a judicial formation.

The basic idea behind the protocol was that the Court was to be organised so that clearly inadmissible applications should be dealt with by single judges, routine ‘repetitive’ cases by three-judge committees, ordinary cases by chambers of seven, or five, judges and very important cases by the Grand Chamber of 17 judges. One major time saving would be that a single judge would deal with clearly inadmissible issues, instead of the existing system of committees of three judges. Another would be that time would be saved by combining of the admissibility and merits phases. As regards the first of these, a practice developed that the committees did not meet physically, but instead the lists of inadmissible cases were circulated, and the judges individually appended their signatures approving the list. As regards the second of these, by the time Protocol 14 had entered into force, the Court itself had already introduced this reform by creatively interpreting article 29 which, at the time, allowed this ‘in exceptional cases’.9 Part of the improved efficiency from Protocol 14 has thus been in evidence for a while.

8Eventually, the other states parties adopted a special treaty in 2009, Protocol 14bis, ETS 204, providing that a state could consent to certain of the procedural innovations in Protocol 14 applying in applications against that state. Faced with this, Russia finally ratified Protocol 14.

9Article 29(1) of the ECHR now provides that the decision on admissibility may be taken separately, and this is only supposed to be the norm for inter-state cases (art. 29(2)).

2.The main proposals of the Woolf Report

The Woolf Report contained recommendations relating to the working methods of the Court. I will not deal with all of them here. Many of them dealt with technical, training and practical changes, such as proper introduction procedures for, and monitoring of the work of, new judges, and management innovations in the Registry. In retrospect, it is strange why most of these proposals had not been introduced many years ago. The explanation lies partly in the fact that the Court historically was under-utilised. It did not receive a case until 1961. For most of the 1960s and the 1970s it received very few cases from the Commission. There were only 14 states which recognised the right of individual petition in 1980. Another important aspect to remember is that it is an entity mixing 47 legal cultures, and consisting not only of people with many years of experience of full-time judging (who should know something about the practicalities of running a court),10 but also of professors and advocates. The law is a conservative force, and courts are, not surprisingly, conservative institutions. Changes in the rules of procedure were, and are, a matter for the plenary Court. In these circumstances, where one strives to achieve consensus before making significant changes, reform can be a long time in coming. It is in the light of these factors that one should see the Court’s initial tardiness in getting its house in order. But if the Court was slow to react to begin with, as sections 4–6 make clear, the last few years have seen it taking many different steps, including radical steps, to improve efficiency.

The Woolf Report recommended changes to the rules of procedure to clarify what constitutes an application and to make clear that there is no application until the receipt by the Court of a completed application form. Both these changes have been made. There are tighter time limits, which are held to strictly. If the applicant does not reply to the Registry’s request for more information on the substance of the complaint and exhaustion of domestic remedies, the file is destroyed.11

10Although it depends upon the legal culture: the ordinary and administrative courts in many European states show considerable inefficiencies. See generally the data on the website of the Commission on the Efficiency of Justice, www.coe.int/T/dghl/cooperation/ cepej/default_en.asp.

11ECtHR, ‘Practice Direction: Institution of Proceedings’, 1 November 2003, amended 22 September 2008 and 24 June 2009, www.echr.coe.int/NR/rdonlyres/9F0B9646-3806- 4814-A7CF-345304DCCDB2/0/PracticeDirectionsInstitutionOfProceedingsOctober2010. pdf, provides that: ‘8. (a) An applicant should be diligent in conducting correspondence with the Court’s Registry. (b) A delay in replying or failure to reply may be regarded as a

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Part of the problem of the flood of cases was perceived to be informational: people did not know that their complaint was without any prospect of success. Woolf recommended the compilation of a handbook on admissibility. A practical guide for lawyers was published in December 2010 in (so far) six languages.12 It was more recently complemented with an online admissibility checklist.13

Another proposal was for the creation of an ‘Article 41 Unit’ in the Registry, to assist judges and ensure greater consistency in compensation. Woolf considered that the Court should also publish guidelines as to rates of compensation in order to assist and encourage parties to resolve cases domestically. The issue of consistency in compensation is now under the general supervision of the Jurisconsult in the Registry. The role of the Court in just satisfaction is considered elsewhere in this volume.14 It will suffice to say here that assessing just satisfaction can involve complex issues of national law, necessitating contacts with national authorities, conducted by or together with the Committee of Ministers, and so may result in considerable delay.15

Woolf proposed greater use of friendly settlements and the establishment of a specialist unit in the Registry. The latter proposal has not been followed, as there appears to be unanimity that the casehandling officer is best placed to organise a friendly settlement. In 2010, 1,223 applications were struck out by a decision or judgment following a friendly settlement or unilateral declaration, a steep rise

sign that the applicant is no longer interested in pursuing his or her application. 9. Failure to provide further information or documents at the Registry’s request … may result in the application not being examined by the Court or being declared inadmissible or struck out of the Court’s list of cases.’ Applications must be completed within 8 weeks, and this time limit is strictly adhered to, see ECtHR, Kemevuako v. Netherlands (Appl. No. 65938/09), Decision (Third Section), 1 June 2010, not reported.

12ECtHR, ‘Practical Guide on Admissibility Criteria’, www.echr.coe.int/ECHR/EN/Header/ Case-Law/Case-law+analysis/Admissibility+guide/.

13ECtHR, ‘Applicant Check List’, published (in French) 6 December 2011, http://appform. echr.coe.int/echrappchecklist/default.aspx?lang=eng&cookieCheck=true.

14See Leach, Chapter 5 this volume.

15See further, the recommendation of the Group of Wise Persons, below, section 3. O’Boyle considers that by awarding damages in large numbers of cases applying well-established case law, the Court ‘took a wrong turning’: M. O’Boyle, ‘The Future’, in E. Myjer et al. (eds.), The Conscience of Europe: 50 Years of the European Court of Human Rights

(London: Council of Europe, Third Millennium Publishing Limited, 2010) (hereinafter O’Boyle, ‘The Future’), at 198.

from 625 in 2009.16 The working, and potential for increased use of, friendly settlements have been analysed by others.17 Suffice to say here that they are not a cure for the backlog.

Two more radical proposals made by Woolf can be mentioned here. The first was that satellite offices of the Registry should be established in certain high case count states. In making this proposal, Woolf was inspired by the – relative – success of a pilot project in Warsaw providing potential applicants with information on the likely admissibility of their complaints.18 However, Woolf considered that satellite offices could also carry out the initial processing of applications so that those that proceed to Strasbourg are ready for allocation. In other words, Woolf envisaged not only improved information, but in addition, a filtering mechanism at the national level.

He also argued for this solution on the basis that a specialist branch of the Registry, consisting of local lawyers, conversant with the language and the legal culture, would be better placed to work together with existing national institutions, such as the ombudsmen. Applications which disclosed no violation of the Convention, but which did indicate that there might have been maladministration, could thus obtain a remedy. This proposal has not been acted upon. One reason for this is budgetary. Another is the practical difficulty involved in establishing and maintaining an independent subsidiary organ of the Registry, consisting of local employees, in more ‘hostile’ cultural environments.

The second, more radical proposal, was the introduction of a priority policy, considered below in section 5.

3.The main proposals of the Report of the Group of Wise Persons

The Group of Wise Persons was established in 2005 to look at the longterm effectiveness of the ECHR control mechanism, going beyond the Protocol 14 changes, while ‘preserving the basic philosophy underlying

16ECtHR, Annual Report 2010 (Strasbourg: Registry of the European Court of Human Rights, 2011), www.echr.coe.int/NR/rdonlyres/F2735259-F638–4E83-82DF-AAC7E934A1D6/0/ 2010_Rapport_Annuel_EN.pdf, at 160.

17H. Keller, M. Forowicz and L. Engi, Friendly Settlements before the European Court of Human Rights: Theory and Practice (Oxford University Press, 2010).

18H. Machinska, ‘Pilot Lawyer Project Developed by the Council of Europe to Make Direct Access to the ECtHR Easier and More Effective for Individuals’, in E. LambertAbdelgawad (ed.), Preventing and Sanctioning Hindrances to the Right of Individual Petition before the ECtHR (Antwerp: Intersentia, 2011).

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the Convention’. It made a number of proposals. To begin with, it dismissed summarily the idea that the Court be given a power to select cases to decide on the merits, on the basis that ‘a power of this kind would be alien to the philosophy of the European human rights protection system’ (para. 42). A greater margin of appreciation would also ‘entail a risk of politicising the system as the Court would have to select cases for examination. The choices made might lead to inconsistencies and might even be considered arbitrary.’

Instead, the Group proposed dealing with the case overload, and repetitive cases, by establishing a ‘Judicial Committee’ which would be separate from, but attached to the Court. It would have jurisdiction to hear all applications raising admissibility issues and all cases which could be declared manifestly well-founded or manifestly ill-founded on the basis of well-established case law of the Court. In other words, it would do the work to be done (when Protocol 14 entered into force) of single judge formations and committees. It would exercise the same powers as the Court in respect of just satisfaction. Its members would be judges ‘enjoying full guarantees of independence’ (para. 52). In this respect, it attempted to meet the criticism directed against the earlier proposal by the Evaluation Group in 2001, that this work could be handled by non-judicial rapporteurs in the Registry. The Judicial Committee would be a smaller body than the Court, but it would ‘reflect a geographical balance as well as a harmonious gender balance and should be based on a system of rotation between states’ (para. 53). It would be assisted by the Registry. Its decisions could not be appealed to the Court, but the Court could decide, proprio motu, to review a case with which it disagreed.

As the new body would take over a large part of the work of the present Court, the implication was that the number of judges of the Court should be reduced, ‘bringing it into line with the Court’s functional requirements and the need to ensure consistency of case law’ (para. 120). Judges would be elected on the basis of a system of rotation among states. The national perspective in individual cases would be maintained by allowing ad hoc judges.

The Group also proposed to transfer to the national legal system the function of assessing the level of compensation required to afford just satisfaction to an applicant, on the basis that this might be more effectively performed by a national organ.

It proposed that, in order to reinforce the subsidiary nature of the system, and foster dialogue with the highest national courts,

advisory opinions be introduced. This was the first official endorsement of this idea, analysed below in section 6.

The Group proposed that certain of the rules now to be found in the Convention be moved to a statute, which could be more easily amended – by the Committee of Ministers, with the approval of the Court. Finally, it wanted practical measures to strengthen the authority of the Court’s case law in the states parties, mainly by a duty to translate and spread these among courts, and that domestic remedies for Convention remedies be enhanced. These proposals are expressions of the principle of subsidiarity.

This last group of proposals was easily accepted, even though the Court signalled, as regards the statute, its need for full control: it wanted both the power of initiative and the power of approval.19 The present state of this proposal is discussed in section 6. Certain of the other proposals – advisory opinions, the separate Judicial Committee – received a cautious welcome from the Court, although it stressed that more investigation was needed. The Court was not persuaded, however, that the task of determining the level of just satisfaction would be more efficiently handled by a judicial body at national level.

Other commentators were much less sure that the Judicial Committee would be an improvement.20 It was pointed out, inter alia, that it was shifting the overload from a new, more ‘constitutional’-oriented Court, to a subsidiary body, but that anyway the Registry would continue to bear the brunt of the work. It was most unlikely to be cheaper. States would not accept the reduction of judges on the Court proper. And, a not insignificant factor, it would be difficult to recruit good candidates to the Judicial Committee, because the work would be, to put it mildly, very boring.21

19Opinion of the Court on the Wise Persons’ Report, 2 April 2007, www.echr.coe.int/NR/ rdonlyres/26457EAB-2840-4D71-9ED7-85F0F8AE0026/0/OpinionoftheCourtonthe- WisePersonsReport.pdf.

20M. Eaton, ‘The New Judicial Filtering Mechanism: Introductory Comments’, in Directorate General of Human Rights (ed.), Future Developments of the European Court of Human Rights in the Light of the Wise Persons’ Report: Colloquy Organized by the San Marino Chairmanship of the Committee of Ministers of the Council of Europe, San Marino, 22–3 March 2007 (France: Council of Europe, 2007).

21In this respect, one can note the comment of the chairperson of the committee which interviews candidates for judges, Mrs. Herta Däubler-Gmelin, that ‘often candidates are good, but not outstanding’. PACE Committee on Legal Affairs and Human Rights, ‘The Future of the Strasbourg Court and Enforcement of ECHR Standards: Reflections on the Interlaken Process’, 21 January 2010, AS/Jur(2010)06.

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4.Protocol 14 enters into force

4.1Filtering

When the protocol entered into force, the president decided that there should be 20 single judges, serving for one year at a time. Each single judge works approximately 25 per cent of the time on this task, and otherwise continues to carry out his/her other duties within the section to which s/he is assigned.22 For most states, a single judge is sufficient. The exceptions are Russia (5 judges), Turkey (4), Romania (3), Ukraine (3) and Poland (2). The same person can be a single judge for three states (two lowcount and one high-count state). As regards Registry support, instead of deputy section heads handling these cases, it is now a non-judicial rapporteur23 who decides initially whether the case should be assigned to a single judge, a committee, or a chamber (art. 24(2)), or just tabled while new information is requested.24 A specialist ‘filtering’ section has been created in Registry. This has apparently worked well. It has, inter alia, attempted proactively to identify patterns, or ‘problem areas’, for each state.

As the single judge will seldom be familiar with the language, legal system and legal culture of the states s/he has been assigned, the nonjudicial rapporteur has a key role in the process. In fact, the lists the single judge receives usually consist of extremely summary information on each case, a sentence or two on what the case is about and the relevant Convention right. The single judge normally has a two-week period to consider the drafts presented. Should s/he disagree with a proposal, s/he indicates whether the case should be sent to a committee or a chamber.

The single judge procedure thus preserves the form of a judicial determination of each application, but in practice, in almost all cases, it is the non-judicial rapporteur who decides. The system thus requires that judges have a high level of trust in the professionalism and competence of the Registry, particularly their non-judicial rapporteurs. Bearing this in mind, it is surprising how little discussion there has

22ECtHR, ‘Rule 27A1’, Rules of Court, www.echr.coe.int/NR/rdonlyres/6AC1A02E-9A3C- 4E06-94EF-E0BD377731DA/0/RulesOfCourt_April2011.pdf (1 April 2011). The Court is currently discussing whether five single judges should instead be tasked with working almost full-time on single judge cases.

23This is a senior lawyer in the Registry. The term is used to distinguish them from members of the Court (judges) who act as rapporteurs in judgments.

24Spot checks are made by the single judges to monitor the work of their non-judicial rapporteurs.

been of the procedures (selection, training etc.) applied by the Court to ensure that Registry personnel attain and maintain a very high standard of objectivity in dealing with cases which will often come from their home state.25 Moreover, there has been little discussion of the existing practice (encouraged by the Court) of certain states in providing and paying for temporary qualified legal staff (usually junior judges) to strengthen the Registry and speed up handling of cases concerning their own state. Several states, among them Sweden, have done this for a number of years. Russia has recently sent some 20 junior judges to assist with the backlog of Russian cases. These seconded junior judges are not non-judicial rapporteurs, but nonetheless they must be assumed to have considerable influence over whether or not a case is declared admissible.26

The single judge figures indicate relatively high levels of ‘efficiency’. As already noted, single judge chambers have only been functioning since June 2010. All of the new cases coming in from Ukraine and Poland identified for treatment by single judge are being dealt with immediately. For Romania, the figure being dealt with immediately is more than 90 per cent. For Russia and Turkey, the Filtering Section is able to deal immediately with roughly 75 per cent of the single judge cases.27 The figures for 2011 (to 31 October 2011) reveal that 39,882 cases were declared inadmissible, the great majority by single judge formations. This was a 46 per cent increase on the same period in 2010.28

The Registry calculated in 2010 that, with 80 assistant lawyers preparing decisions in approximately 400 single judge cases each per year, and with 20 single judges who devote approximately 25 per cent of their time to work on these cases, the Court would be able

25The same can be said of the use of interns – stageurs – in preparing cases, including using the manifestly ill-founded admissibility criterion. Cf. B. Jones, ‘European Court of Human Rights: is the admissions system transparent enough?’ http://ukhumanrightsblog. com/2012/01/27/european-court-of-human-rights-is-the-admissions-system-transparent- enough-ben-jones/.

26There is a degree of control. The Court specifies criteria the candidates must satisfy. The sending state submits a list of applicants which it considers satisfies these criteria, and the Court makes the final selection. When in place, the work of the seconded staff is subject to supervision by the heads of division, and their work is quality controlled.

27ECtHR, ‘Filtering Section Speeds up Processing of Cases from Highest Case-Count Countries’, undated, www.echr.coe.int/NR/rdonlyres/F484672E-0C6A-4815-9449-44157ED 9C89C/0/Bilan_filtrage_EN.pdf.

28ECtHR, ‘Statistics 2011 (compared to 2010)’, www.echr.coe.int/NR/rdonlyres/7B68F865- 2B15-4DFC-85E5-DEDD8C160AC1/0/Stats_EN_31102011.pdf.

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to produce some 32,000 decisions. Thus, the formations have been even more effective than expected. Still, at the end of 2010, over 90,000 cases were pending before the single judge formation. Thus, even without the constant influx of new cases, it would take over two years for the Court to clear this backlog. And, if present trends hold, it seems clear that there will be more than 39,000 incoming clearly inadmissible cases per year in the future.29

4.2New chambers

One possibility provided for by Protocol 14, the creation of five judge chambers, also seemed to hold out the potential for increasing efficiency. However, this option has not yet been implemented. The Interlaken Declaration urged the Court to introduce this. There are two main reasons why it has not yet done so.

The first is that deciding the composition of the sections is not easy. It is important that there are not too many judges from one geographical region, as this could make a judgment susceptible to attack by a state which loses the case and considers that too many judges from ‘alien’ legal cultures have dominated the Court.30 Moreover, there should not be too many new judges who are, or at least might be, inexperienced in interpreting and applying human rights provisions. And the caseload should not vary too much between the sections.31 It has thus not proved to be easy to move without loss of efficiency from the present system of sections consisting of 9–10 judges (7 for a chamber, and two reserves) to a new system of 7 judge sections (5 plus two reserves).

The second reason relates to the fact that more chambers will mean increased difficulties in maintaining the internal consistency in the case law.

29Steering Committee for Human Rights, CDDH (2011) R72 Add. I (1 April 2011), appendix IV, para. 18.

30Important differences in approach in, e.g. family matters, have occasionally arisen between judges from the ‘progressive’ ‘North’ and the ‘traditional’ ‘South’. See, e.g., the Dissenting Opinions of Judges Palm, Foighel and Pekkanen in ECtHR, Cossey v. UK (Appl. No. 10843/84), Judgment (Plenary), 27 September 1990, Series A, No. 184.

31For discussions of the problems involved in composing sections, see A. Drzemczewski, ‘The Internal Organisation of the European Court of Human Rights: The Composition of Chambers and the Grand Chamber’, European Human Rights Law Review 3 (2000) 233–48.

4.3 The new admissibility ground

One of the reforms introduced by Protocol 14 was the subject of much discussion, connected to the above-mentioned division of opinion between those who argued for and against a more explicit ‘constitutional’ role for the Court. This was the introduction of a new ground of admissibility. The proposal that the Court should be able to rule inadmissible applications raising ‘no substantial issue’ was not adopted. Instead, the new ground, article 35(3)(b), provides that an application can be declared inadmissible if the applicant ‘has not suffered a significant disadvantage, unless respect for human rights … requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal’. This provision moves focus from the (objective) insignificance of the issue to the (subjective) disadvantage of the applicant – something which, at least in monetary terms, will obviously vary from applicant to applicant. For a transitional period of two years it is not to be applied by the single judge formations deciding upon admissibility, but only committees, chambers and the Grand Chamber.32

How significant can, and should, this ground of inadmissibility be? This depends upon how one views its purpose. There have already been a number of cases in which the chambers have invoked it.33 However, it is not likely to be invoked in very many cases – unless it is creatively interpreted. The overload problem is partially caused by the large number of clearly inadmissible cases, not otherwise admissible cases which do not raise ‘important’ issues. Moreover, the link that is made between admissibility and effective local remedies will mean that this admissibility ground, as it is worded at present, cannot be used to deal with many applications from states with structural deficiencies in their judicial systems, either generally, or in dealing with certain types of complaints.34

32The drafters took the view that time should elapse to allow interpretative case law to develop, ‘Explanatory Report to Protocol 14’, para. 106.

33There were some 30 cases up to the end of February 2012. ECtHR, ‘Preliminary Opinion of the Court in Preparation for the Brighton Conference’, 20 February 2012 (hereinafter, ECtHR, ‘Preliminary Opinion’), para. 10. See, e.g., ECtHR, Korolev (II) v. Russia (Appl. No. 25551/05), Decision (First Section), 27 July 2010, Reports 2010 (damages claim for less than €1); ECtHR, Ionescu v. Romania (Appl. No. 36659/04), Decision (Third Section), 1 June 2010 (damages claim amounting to €90), not reported.

34See further below, section 6.6.