Guaranteeing the authority and effectiveness of the European Court of Human Rights on a national level (Outline*)
I. Attitudes towards the ECtHR in the Russian Federation
I.1. In the Russian Federation the ECtHR is one of the best known and most popular international institutions. It is not the case with the Council of Europe. Hardly anybody except professionals is aware of its activities and achievements. A mistaken belief is wide-spread that it is too critical of Russians and the Russian Federation and unfair towards them, that it is arrogant and adheres to double standards wherever a conflict of interests occurs.
I.2. Attitudes towards the ECtHR are totally different. It is really considered by ordinary people to be a remedy of last resort. Nearly everybody, including wealthy ones and major political parties, counts on its help in their struggle for justice and protection of their interests, and in opposition towards merciless and indifferent state Moloch. In a way the ECtHR has become a very important part of Russian society’s everyday life. It may be considered as one of the key elements of our political, legal and institutional system.
I.3. The Russian leadership, government, courts know it quite well and try to meet people’s expectations in this respect. May be they do it reluctantly, painfully, in a contradictory way, nevertheless they transform society, state structures, legislation and its application in accordance with the requirements of the European Convention on Human Rights (ECHR) and the ECtHR case law. It will be a mistake to underestimate these efforts.
I.4. The positive record is impressive. The penitentiary system has been transferred from the Ministry of the Interior to the Ministry of Justice. A decision to close “camps” for criminals is taken in principle. A new ten years program to construct modern prisons is launched. Major changes were introduced in the Penal Code to make it more humane. The court system reform is under way. These are a few examples.
I.5. But of course much more is to be done. It is an enormous task. It will take many years to accomplish. And it is feasible only if deeper international cooperation and partnership in Europe based on genuine equality and mutual trust, and respect of each other interests is assured. The CoE and ECtHR may play a wonderful role only under such circumstances.
II. Negative measures
II.1. The ECtHR is undergoing a severe crisis. It’s obvious. This crisis has many dimensions. It is caused by a number of factors. They are viewed by different political players in a different way. But there is no denying that state-parties to the European Convention have lost their ownership of the ECHR. They drag their feet instead of implementing it in accordance with the best known practices indicated by the ECtHR. It causes damage to the whole European system of Human Rights protection. It undermines the subsidiarity principle enshrined in it.
II.2. The way out of this situation must be found. A strict compliance to the subsidiarity principle must prevail. All stakeholders of the European system of Human Rights, including states, the ECtHR and Committee of ministers of the Council of Europe (CMCE), must abide to an agreed understanding of this principle. For that the state-parties to the ECHR should restore their ownership over the European Convention. Without that repetitive cases will not disappear as a major threat to the effectiveness of the ECtHR and the whole European system of Human Rights protection. It is a key issue.
II.3. At the same time the ECtHR effectiveness is tremendously hampered by the enormous and ever increasing number of inadmissible applications. The proportion of time and efforts the ECtHR, its judges and lawyers spend on them is not appropriate. It is not feasible either. One may say that the ECtHR has become a victim of its own success. But it is a partly erroneous explanation. The other side of the coin is that today procedures do not prevent such developments. This situation can be changed. Then it must be changed. A long list of remedies is available. It is time to make a political choice.
II.4. A very effective proposal is to create a specialized body in the framework of the ECHR to which all powers to make decisions on admissibility should be delegated.
It will be a kind of reincarnation of the old European Commission on Human Rights under a new title, though a little bit different. This new body will perform its activities under the guidance of the ECtHR. States-parties to the ECHR are supposed to give it a very precise and limited authority. Its main task will consist of taking on its shoulders the workload of the ECtHR as far as the identification of inadmissible applications is concerned. It will provide the ECtHR with the opportunity to concentrate on substantive creative work.
But such an innovation must be supported and go hand in hand with appropriate measures on a national level.
II.5. There is a need to create an additional independent and authoritative filter to prevent obviously inadmissible applications from coming to the ECtHR.
Some politicians and experts have tabled proposals concerning creation of special competence national courts to serve as such a filter. These proposals are unacceptable. They contravene the true essence of international cooperation in the field of Human Rights protection. They are biased. These proposals may lead to different kinds of abuses if put into practice. They should be abandoned.
But nothing precludes us from creating regional unbiased autonomous nongovernmental organizations to perform the functions of a filter. They will work impartially. They will be trusted. They will be financed through a grant system. They will combine their Human Rights activities with this very important one, providing help and advice to those who cannot win their case in the ECtHR. Nobody then will have the feeling that he or she was treated unfairly or that they were discriminated on some kind of political grounds.
II.6. There is another set of reasonable proposals. Their main aim is to introduce fees for processing individual applications.
Such measures of course will have powerful dissuasive, preclusive or even deterrent effect. But they contravene once more the very essence of any international system of Human Rights protection. Nevertheless it is like that and will stay like that unless we discover how to differentiate between the poor and the deprived who has nobody else to turn to for help, on one hand, and those who deliberately abuse their own or their client right of application, on the other.
My advice is as follows. Let us help those who are unfortunately in the dark about limitations the ECtHR jurisdiction has. But let us punish, let is fine legal advisers, barristers and legal firms that cheat, fool and pull the wool over the eyes of their clients. We should make them accountable for their abusive acts and/or other wrongdoings.
Progress in some areas I have spotlighted will help us a lot to prepare ground for changes and improvements in other fields concerning this time state behavior which are much more difficult to achieve.
III. Positive measures
III.1. To stop repetitive cases from coming to the ECtHR there are two types of remedies. The first one consists in creating specialized national courts dealing with Human Rights violations and abuses or treating structural problems identified by the ECtHR in the state-parties to the European Convention on Human Rights.
In a way it is a solution which was adopted and quite successfully by Italy, when the country discovered that it is unable to cope with the problem of excessive length of court procedures in any other way. At the end of 1990-s the ECtHR and CMCE were overburdened with Italian cases of such type. Italy tried to use all other tools. They proved to be inefficient. Then Italy proceeded with the nationalization of such cases. A new legal remedy was conceived to treat them on a national level.
Nevertheless establishing new courts is not a panacea. It is not a real cure. And the Italian precedent shows it quite obviously.
III. 2. What is really needed is to create efficient mechanisms of implementation of the ECtHR judgments on a national level which should imply introduction of wide varieties of general measures to prevent new Human Rights violations detected by the ECtHR. Cases, situations, and judgments are so different. A society needs to digest, to comprehend them. Only after, could suitable general measures be introduced. And they are to be put into practice in a viable manner. It takes time and a lot of time. It needs a lot of efforts. And it presumes that a good will and necessary political will is always there.
III.3. That is why what is really needed, what is indispensable, is a genuine integration of the ECtHR judgments into internal legal orders of the states-parties to the European Convention on Human Rights. The ECtHR judgments should be considered as an authoritative source of internal law, a basis of any European country internal legal order.
III.4. It could be achieved if a sine qua non legal condition is met: direct effect and direct application of these judgments into the internal legal order of European countries is assured.
I consider that we must devote the most of our time to discussing this matter.
© M.L.Entin, prof., ESI director
* Of the author expert contribution to the Hearing on Interlaken process held by the Committee on Legal Affairs and Human Rights of the Council of Europe Parliamentary Assembly in Paris on December 16, 2009.
** Статья подготовлена при поддержке Российского гуманитарного научного фонда, проект 07-03-02021а "Образ России в Совете Европы и Европейском суде по правам человека и пути его улучшения"