ACCESS DENIED? MANY CLAIM EUROPEAN COURT REFORMS ACTUALLY RESTRICTIVE
Sara Petrosyan
2010/ 03/01 | 16:24
After Interlaken ECHR Will Resemble Kafka’s "The Castle"
On February 18-19, in the Swiss city of Interlaken, the Council
of Europe’s Committee of Ministers met to devise ways to reform the
overburdened European Court of Human Rights (ECHR). A joint declaration
was issued setting the course for the future reform of the ECHR.
The Interlaken Declaration cites the necessity of reaching a balance
between the incoming cases and the settled ones and to reduce the
volume of approximately 120,000 outstanding cases. It also states
that new appeals should be dealt with in reasonable time
Ara Ghazaryan, an attorney with the firm "ARNI Consult", describes
the Interlaken Declaration as resembling Franz Kafka’s "The Castle"; a
novel about alienation and bureaucracy that portrays the protagonist’s
endless struggle to gain access to the mysterious authorities of a
castle who govern the village where he wants to work.
Mr. Ghazaryan argues that the procedural process for cases to be
accepted by the ECHR has been fundamentally altered by the Declaration,
and not necessarily for the better.
A need to streamline court procedure and case backlog
At Interlaken, the Committee of Ministers were tasked with discussing
and debating Protocol 14, a reform which would enable a single judge
to decide on the admissibility of applications and a panel of three
judges to rule on routine cases. Current court procedures require a
three-judge committee to rule on the admissibility of applications and
a seven-judge panel to hear routine cases. Essentially, Protocol 14 was
a fast-track procedure first proposed in 2004. Prior to the February
meeting, all 47 Council members, bar Russia, had ratified Protocol 14.
Russia was a hold out even though it was the accession of Russia,
Ukraine and Romania to the Council of Europe in the 1990s precipitated
a flood of court applications. These states now account for 45 per
cent of all pending applications and, at current levels, the backlog
will grow to 300,000 applications within five years.
It was this backlog and the fact that it can take seven years for
a ruling to be issued by the judges that prompted the urgency for
streamlining ECHR procedures. The Court’s credibility was being
questioned.
Russia’s Duma finally voted in favor of Protocol 14 on January 15,
2010 and The Minister of Justice of the Russian Federation, Alexander
Konovalov, presented the instruments of ratification to the Secretary
General of the Council of Europe, Thorbjørn Jagland, at the Interlaken
meeting. Protocol 14 will thus come into force for all CoE members
on June 1, 2010.
In order that the ECHR be able to handle an ever increasing workload of
cases in a reasonable timeframe, especially those involving serious
human rights violations, the Interlaken Declaration highlighted
several areas in need of review.
Inadmissible applications need to be filtered out rapidly and
efficiently Point 6 of The Declaration reads, "The need for effective
measures to reduce the number of clearly inadmissible applications,
the need for effective filtering of these applications and the need
to find solutions for dealing with repetitive applications."
The Declaration also calls on all CoE member states to "fully,
effectively and rapidly execute the final judgments of the Court"
and "invites the Court to make maximum use of the procedural tools
and the resources at its disposal".
Evidently the Committee of Ministers wanted to grant the ECHR the
procedural power to effectively cut the number of "Unworthy" cases
and to bolster the actual execution of its verdicts. In a word –
operational efficiency and cost-cutting.
To strengthen future collaboration between intra-state courts and
the courts, the Committee of Ministers called for the creation of a
network that would allow intra-state courts to petition the European
Court for consultations regarding the legal interpretation of the
European Convention of Human Rights.
With regard to the high number of inadmissible applications, the
Conference invites that Committee of Ministers to consider measures
that would enable the ECHR to concentrate on its essential role of
guarantor of human rights and to adjudicate well-founded cases with
the necessary speed, in particular those alleging serious violations
of human rights.
With regard to access to the ECHR, the Conference calls upon the
Committee of Ministers to consider any additional measures which
might contribute to a sound administration of justice and to examine
in particular under what conditions new procedural rules or practices
could be envisaged, without deterring well-founded application. These
measures, for example, may include the payment of court fees, attorney
presence in all stages of a case, the obligatory use of official ECHR
languages, etc.
"Action Plan" calls for immediate implementation of verdicts
In its Action Plan designed to cut the number of inadmissible
applications and the more efficient review of these cases, the
Conference also proposes that the Committee of Ministers also create
a filtering mechanism, in addition to the one judge procedure, with
possible alternatives.
What the Conference has stressed in its Declaration is the need for
a thorough analysis of the ECHR’s practice relating to applications
declared inadmissible
Armenian attorney Ara Ghazaryan and Artak Zeynalyan presented their
concerns about the draft Declaration to the Committee of Ministers.
While welcoming the initiative of the Committee regarding a reasonable
timeframe for the review of petitions to the ECHR, the attorneys
noted that the concerns expressed in the Declaration’s introduction
merely substantiated the suspicions of Armenian lawyers about the
continuous drop of quality of ECHR verdicts; something that has been
evident during past years.
"However, in our estimation, the proposed measures in the Declaration
draft only serve to further distance average citizens from the ECHR
and transform the Court into the castle depicted by Franz Kafka in
his novel of the same name. In the book, the more individuals try
to gain entry to the castle, the more it moves away from them,"
the lawyers explained.
The Armenian attorneys noted that according to statistics, 20% of
all applications presented to the ECHR are clearly admissible and
that 80% of the applications from Armenia are clearly admissible,
but that only 4% are actually reviewed.
We must take into account that the number of applications presented to
the ECHR today numbers around 150,000. While welcoming the heightened
role of the Committee of Ministers regarding the execution of Court
verdicts, it is expected that intra-state courts requesting Convention
interpretations will have to apply to the Committee of Ministers
within specific work parameters.
Appeal cases launched on the basis of European Court decisions can
only serve as specific work. If this is so, it is incomprehensible why
the possibility is being granted intra-state courts to petition the
Committee of Ministers to receive advice on the legal interpretation
of the Convention, while the citizen that wins in court cannot.
Right to apply for interpretation should be universal
In the opinion of the Armenian attorneys the right to apply for
interpretation must be granted to all citizens, particularly when
you consider that the Court, as a rule, rejects applications filed
for receiving interpretation. (In its entire history, the Court has
only passed three such decisions).
"We strongly oppose that the ECHR set down state fees, the mandatory
presence of attorneys and the use of official court language when
presenting applications. Such procedures will essentially complicate
applying to the Court and will increase associated costs. Even given
today’s conditions of accessibility when presenting applications,
it’s a costly process. There’s attorney fees, postage costs, etc,"
the Armenian attorneys argued.
Regarding complaints that are considered inadmissible, the prospect to
thoroughly review the Court’s procedural process is an interesting
initiative, especially when court documents of decisions ruling
that petitions are inadmissible and court records registered in the
decision-making process are not made available to the authors of
the complaints.
The most criticized feature of Protocol 14, according to the Armenian
attorneys, is the new admission standard named "serious consequence",
whose implementation has been vociferously opposed by all progressive
organizations and individuals engaged in the defense of human rights.
Nevertheless, considering the excessive workload of the Court to be
the highest priority, it was decided to include this criterion. As
a result, the Court is able to consider as inadmissible even those
applications involving human rights violations but where the individual
in question hasn’t suffered serious damage as a result.
Ara Ghazaryan and Artak Zeynalyan have correctly pointed out that
for citizens, the problems confronting the European Court cannot be
differentiated in terms of size if they relate to violations of the
European Convention on Human Rights.