Tuesday, 1 May 2007

Rescuing the Court: Group of Wise Persons

Reforming the procedure of the European Court of Human Rights was not enough. The member states of the Council of Europe had to look beyond Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention.

During the Warsaw Summit (May 2005) the Council of Europe set up a Group of Wise Persons to examine the long term efficiency of the control mechanism of the European Convention on Human Rights.

The Group stressed the need for Protocol No. 14 to enter rapidly into force and noted that only one more instrument of ratification was needed. The Group then proceeded to examine further reforms, because “the survival of the machinery for the judicial protection of human rights and the Court’s ability to cope with its workload are seriously under threat from an exponential increase in the number of individual applications which jeopardises the proper functioning of the Convention’s control system”.

The Group did not want to affect the unique feature of the supranational European Court, the right of individual application.

The Group proposed an amendment to the Convention allowing for future decisions on operating procedures of the Court to be taken by way of unanimously adopted resolutions of the Committee of Ministers, without amending the Convention itself each time. (Thus, lengthy ratification procedures could be evaded.)

The Group proposed adding more resources to the Court by the way of a judicial filtering body, the Judicial Committee, which could hear all applications raising admissibility issues and decide the applications which are either manifestly well-founded or manifestly ill-founded.

The Human Rights Court is meant to offer subsidiary control. Therefore it is important to improve the legal and judicial systems on the national level. The Group emphasised the importance of disseminating the Court’s case law and the recognition of its authority above and beyond the judgment’s binding effect on the parties.

The Group proposed opening up the possibility for national courts to ask the European Court for non-binding advisory opinions. Article 41 of the Convention should be amended in order to award compensation to the injured party on the national level.

The Group encouraged the Court to make the fullest possible use of the “pilot judgment” procedure in cases where structural or systemic problems affected large numbers of people.

In order to reduce the Court’s workload, the Group recommended more use of friendly settlements and mediation.

The Commissioner for Human Rights should actively work with the member states when there were serious violations of human rights.

In a little more than a week’s time these proposals are to be dealt with by the Ministers of Foreign Affairs, when the Committee of Ministers convenes for its yearly meeting on the ministerial level. Actions are eagerly awaited.

Ralf Grahn