Update: The European Human Rights System

 

By James W. Hart

 

James Hart is Associate Senior Reference Librarian in the University of Cincinnati Law Library. He holds the M.A. in classics and the M.S.L.S. from the University of Southern California. A version of this article was previously published in 102 Law Library Journal 533 (2010). (The citation to the article: Hart, James W. The European Human Rights System , 102 Law Library Journal 533 (2010))

 

 

Published June 2015

(Supplements the February 2011 archive version)

See the Archive version

 

Table of Contents

A. The European Court of Human Rights Problems

B. The Publication and Dissemination of Court Documents

C.  EU Accession to the ECHR

D. The Barrier to Accession

E. Conclusion

F. Appendix


This is a supplement to The European Human Rights System , which described the founding, development, and bibliography of the Council of Europe (COE), the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and the European Court of Human Rights (ECtHR). It does not repeat the contents of The European Human Rights System , but describes what has happened between the publication of that article in 2010 and the end of 2014.  This update covers the alleviation of the pressures on the European Court of Human Rights, improvements in the publication and dissemination of the ECtHR’s documents, the Draft Treaty of Accession, and the case that is a barrier to accession.

 

A.     The European Court of Human Rights Problems

When The European Human Rights System was published five years ago the COE and the ECtHR had the following serious problems:

 

·        The number of pending cases was much too large for the Court.

·        The accession of the European Union to the ECHR had a number of unsolved complex problems.

·        Compliance with ECtHR judgments had declined significantly.

 

Protocol 14 of the ECHR put in place several mechanisms to alleviate the Court’s enormous load of cases and to improve its efficiency.  First, before Protocol 14, came into force, initial decisions on admissibility were made by a three judge panel; Protocol 14 reduced that to one judge. [1]   Second, Protocol 14 sends cases that are “already the subject of well-established case-law of the Court” to a three judge committee and cases that involve a “subject of well-established case-law of the Court,” to a chamber of five judges. [2]   Finally, Protocol 14 raises the bar on the admissibility of cases in which the plaintiff has not “suffered a significant disadvantage.” [3]  

 

The statistics tell the story.  In September 2011 the number of pending cases had risen to a peak of 160,000; during 2012 it decreased to 128,000; [4] and by the end of 2014 it stood at 70,000. [5]   In three years the number declined by 56 %.  Note that pending cases are those on which the decision on admissibility has not been made.  The Court itself said, “This means that Protocol 14 has been a success, above all…particularly as regards filtering….” [6]  

 

Although the Court attributes these dramatic decreases primarily to Protocol 14, it also believes that Rule 47 of the Rules of Court had a role.  That Rule sets the requirements for the contents of individual applications. [7]   The Rule’s present form is the result of amendments to the original Rule twice in 2002 and once each in 2007, 2008, and 2013.  The most recent version of Rule 47 came into effect on January 1, 2014.  In addition the Court appears to say that the Rule was not as strictly followed in the past as it has been more recently. [8]   The Court ascribes the effects of the new Rule 47 to:

 

                the case - processing divisions have less correspondence to deal with;

                incoming applications are now better organised;

                properly-completed application forms make it easier to analyse and

process incoming cases;

                there is a significant gain of time enabling the Registry to deal with other

meritorious cases. [9]

 

It is impossible to know how much of the decline in pending cases has been caused by Protocol 14 and how much by Rule 47.  It would take a statistical analysis too sophisticated for a working court in order to determine how much of the decline is caused by one or the other.

 

B.     The Publication and Dissemination of Court Documents

 

Since the publication of The European Human Rights System, the ECtHR has improved the publication and dissemination of its documents.  The Registry installed an entirely new HUDOC system in 2012 and 2013 that provides a number of improvements.  In addition to the features described on page 542 of The European Human Rights System , it also has an Advanced Search system with thesauri for states and regions, visit types, visit start date, document date, and publication date.  It also includes a database of communicated cases from 2008 to 2011, and parallel systems for the work of the Committee for the Prevention of Torture and the European Social Charter.  In 2012 the Registry added an interface in Turkish and planned on adding one in Russian last year.  By 2014 the Turkish version included 2,600 documents in that language.  The Registry has also begun a three year project financed by the Human Rights Trust Fund (HRTF) to translate cases that are important in the Court’s jurisprudence throughout the continent into the languages of countries in which knowledge of that jurisprudence is rare.  “The beneficiary States of this three-year project are Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, the Republic of Moldova, Montenegro, Serbia, ‘the former Yugoslav Republic of Macedonia,’ Turkey and Ukraine.” [10]  

 

C.     EU Accession to the ECHR

 

EU accession to the ECHR is a tale that is too long and complex to describe in detail here.  Let us concentrate on the last two events in the story: the most recent Draft Treaty of Accession and the CJEU’s Opinion 2/13 of December 18, 2014.

 

The most important issues that the Draft Treaty of Accession addresses is the allocation of responsibility between the CJEU and the ECtHR, between the EU and its members, and between the law of the EU and the Convention.  The allocation of responsibility between the COE and its members is not mentioned in the Treaty of Accession because it is already part of the Convention.

 

Article 1(2) of the Draft Treaty of Accession makes clear that the Treaty of Accession will become part of the ECHR when the entire process of accession is completed.  Section (2) ensures that the ECHR will not require the EU to do anything that contradicts its laws.  Section (3) allows that when a member of the EU or its representative performs an act that is contrary to the Convention “including decisions taken under the Treaty on European Union and under the Treaty on the Functioning of the European Union”, it is the member that is responsible although the EU may be a co-respondent.

 

Article 3 contains the two most important issues in the Draft Treaty: the co-respondent mechanism and the potential review of EU law by the ECtHR.  A co-respondent is a party to a case.  If a member of the EU appears to violate the Convention when doing or omitting to do something that is compatible with EU law, the EU may become a co-respondent.  If the EU itself appears to violate the Convention when doing or omitting to do something that is compatible with EU law, one or more of its member states may become co-respondents.  “A High Contracting Party shall become a co-respondent either by accepting an invitation from the Court or by decision of the Court upon the request of that High Contracting Party.” [11]

 

But this is just the beginning.  If the CJEU has not previously reviewed the compatibility of the part of the Convention or a Protocol to which the EU has acceded and that has allegedly been violated, then the CJEU is given an opportunity to do so before the application proceeds to the ECtHR.  In other words, if an EU member allegedly violated a provision of the ECHR, the act or omission was related to EU law, and the CJEU had not reviewed that provision in the past, then the application should go directly to the CJEU so that it can review the alleged violation of the Convention before the ECtHR rules on it.  And ”… where complainants directly challenge actions of the EU institutions, the principle of exhaustion of remedies would oblige appellants to take their action to the CJEU first,….” [12]    If an EU member allegedly violated a provision of the ECHR, but the act or omission was not related to EU law, the applicant should submit the complaint directly to the ECtHR.  An internal review by the CJEU would be unnecessary. The CJEU’s internal review, however, does not have the force of law. The proceedings of the CJEU are not considered to be “procedures of international investigation or settlement” [13] for the purposes of admissibility under the ECHR or the introduction of other means of dispute settlement.

 

In addition to these arrangements for the interactions of the two courts, the Draft Treaty on Accession also arranges for the EU to participate in the major organs of the COE.  A delegation of the European Parliament could take part in the election of judges by the COE’s Parliamentary Assembly.  The delegation of the EU’s European Parliament in the COE’s Parliamentary Assembly would equal the number of that of the largest High Contracting Party.  “The European Union shall be entitled to participate in the meetings of the Committee of Ministers, with the right to vote, when the latter takes decisions…” [14] that concern the reduction of the number of judges in a chamber to five, the approval of Friendly Settlements, the enforcement of judgments, requests for advisory opinions, and the protection of the powers of the COE’s Committee of Ministers.  The Committee of Ministers shall consult the delegation of the EU before the adoption of any other text that 1) relates to the ECHR or any of its protocols to which the EU is a party, 2) relates to Committee of Ministers actions in any of the areas on which the EU can vote, or 3) to the selection of candidates for judge of the ECtHR in the Parliamentary Assembly.  Finally, the Draft Treaty on Accession will not come into force until “the first day of the month following the expiration of a period of three months after the date” [15] on which all High Contracting Parties have accepted it.

 

D.     The Barrier to Accession

 

It sounds like everything’s ready to go, right?  Not so fast.  There are still some substantial problems that need to be solved before accession can become a reality.  On July 4, 2013 the European Commission and a number of EU members requested an opinion from the CJEU on the compatibility of the Draft Treaty with EU law.  The court’s decision, which was handed down on December 18, 2014, clearly held that the Treaty is not compatible with EU law for the five following substantial reasons. [16]

 

First, the Treaty does not take account of the specific characteristics of EU law in three ways: [17]

 

·        The Draft Treaty does not prohibit member states from having higher human rights standards than the EU although this is prohibited by Melloni v. Ministerio, [18] a CJEU case.

·        The Treaty did not provide for the rule of “mutual trust,” which obligates EU members “…to presume that all other Member States are ‘complying with EU law and particularly with the fundamental rights recognized by EU law,’ except for ‘exceptional circumstances.’” [19]   “Presume” here means that EU members may not examine the practices of other EU members in the implementation of EU law.

·        The Treaty does not exclude the possibility that if national courts were to send cases to the ECtHR for interpretation of the ECHR as allowed by Protocol 16, it is possible that the ECtHR might not send the application to the CJEU for initial review of any EU law that might be in the application. [20]   Note, however, that Protocol 16 needs 10 ratifications to come into force, but at this writing has only 2. [21]

 

Second, the Draft Treaty violates Article 344 of the TFEU, which says that EU law can only be interpreted by EU institutions. [22]

 

212. Consequently, the fact that Member States or the EU are able to submit an application to the ECtHR is liable in itself to undermine the objective of Article 344 TFEU and, moreover, goes against the very nature of EU law, which… requires that relations between the Member States be governed by EU law to the exclusion, if EU law so requires, of any other law. [23]

 

Next, the CJEU held that the co-respondent system is incompatible with EU law. [24]   The co-respondent system allows the EU and one or more of its member states to become a party to a case begun by the other.  Either party may request from the ECtHR that the other party become a co-respondent or the ECtHR may make one or the other a co-respondent “…if it appears that such allegation calls into question the compatibility with the rights at issue defined in the Convention or in the protocols to…” the TEU or TEFU, or “…any other provision having the same legal value pursuant to those instruments....” [25]   If the CJEU has not had an opportunity to assess the compatibility of the complaint with the ECHR or EU law, it must be given that opportunity.  In C-2/13 the CJEU held that this arrangement “…would be tantamount to allowing it [ECtHR] to take the place of the Court of Justice in order to settle a question that falls within the latter’s exclusive jurisdiction.” [26]   In other words, the co-respondent mechanism is also incompatible with EU law.

 

Fourth, the Draft Treaty does not ensure that all cases involving EU law that are brought before the ECtHR must have the issues of EU law ruled on by an agency of the EU, i.e., the CJEU.  In his article, The EU’s Accession to the ECHR: The Dream Becomes a Nightmare , Steve Peers gives two reasons for this.  “First, they did not reserve to the EU the power to rule on whether the CJEU has already dealt with an issue. Second, they did not permit the CJEU to rule on the interpretation, not just the validity, of EU law.” [27]

 

Last, “…[T]he rules on the Common Foreign and Security Policy (CFSP) were incompatible with EU law….” [28]   This issue comes down to the ECtHR possibly being “…empowered to rule on the compatibility with the ECHR of certain acts, actions or omissions performed in the context of the CFSP on acts or omissions that could have occurred under the CFSP….” [29]   Adding that the CJEU has very limited jurisdiction over acts and omissions performed in the context of CFSP makes clear the ECtHR in many such cases could be the only court to hear such applications.

 

The Court’s opinion appears to have been influenced by two principles that permeate the Draft Treaty: 1) issues of EU law would be allowed to be ruled on by an external court, the ECtHR, and 2) the Treaty would in many ways fail to maintain the cohesiveness and autonomy of EU law.  These are issues that cannot be resolved without a substantial increase in time and effort given to detailed negotiation.  For now, at least, there will be no accession.

 

E.     Conclusion

 

This update has summarized the state of the most important changes to the Council of Europe, the European Court of Human Rights, and the European Convention on the Protection of Human Rights and Fundamental Freedoms.  But it will not attempt to predict how the EU, CJEU, COE and ECtHR will attempt so solve these difficult problems.

 

 

F.     Appendix

 

Rule 471 – Contents of an individual application:

 

1.      An application under Article 34 of the Convention shall be made on the application form provided by the Registry, unless the Court decides otherwise. It shall contain all of the information requested in the relevant parts of the application form and set out:

 

a)     the name, date of birth, nationality and address of the applicant and, where the applicant is a legal person, the full name, date of incorporation or registration, the official registration number (if any) and the official address;

b)     the name, occupation, address, telephone and fax numbers and e-mail address of the representative, if any;

c)      the name of the Contracting Party or Parties against which the application is made;

d)     a concise and legible statement of the facts; (e) a concise and legible statement of the alleged violation(s) of the Convention and the relevant arguments; and

e)      a concise and legible statement confirming the applicant’s compliance with the admissibility criteria laid down in Article 35 § 1 of the Convention.

 

2.       

a)     All of the information referred to in paragraph 1 (d) to (f) above that is set out in the relevant part of the application form should be sufficient to enable the Court to determine the nature and scope of the application without recourse to any other document.

b)     The applicant may however supplement the information by appending to the application form further details on the facts, alleged violations of the Convention and the relevant arguments. Such information shall not exceed 20 pages.

 

3.1.           The application form shall be signed by the applicant or the applicant’s representative and shall be accompanied by:

 

a)     copies of documents relating to the decisions or measures complained of, judicial or otherwise;

b)     copies of documents and decisions showing that the applicant has complied with the exhaustion of domestic remedies requirement and the time-limit contained in Article 35 § 1 of the Convention;

c)      where appropriate, copies of documents relating to any other procedure of international investigation or settlement;

d)     where represented, the original of the power of attorney or form of authority signed by the applicant.

 

3.2.          Documents submitted in support of the application shall be listed in order by date, numbered consecutively and be identified clearly.

 

4.      Applicants who do not wish their identity to be disclosed to the public shall so indicate and shall submit a statement of the reasons justifying such a departure from the normal rule of public access to information in proceedings before the Court. The Court may authorise anonymity or grant it of its own motion.

 

5.1.           Failure to comply with the requirements set out in paragraphs 1 to 3 of this Rule will result in the application not being examined by the Court, unless:

 

a)     the applicant has provided an adequate explanation for the failure to comply;

b)     the application concerns a request for an interim measure;

c)      the Court otherwise directs of its own motion or at the request of an applicant.

 

5.2.           The Court may in any case request an applicant to provide information or documents in any form or manner which may be appropriate within a fixed time-limit.

 

6.       

 

a)     The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall be the date on which an application form satisfying the requirements of this Rule is sent to the Court. The date of dispatch shall be the date of the postmark.

b)     Where it finds it justified, the Court may nevertheless decide that a different date shall be considered to be the date of introduction.

 

7.      Applicants shall keep the Court informed of any change of address and of all circumstances relevant to the application.

 



[1] James W. Hart, The European Human Rights System 102 LL J 533, at 548.

[2] Id.

[3] Id.

[4] Eur. Court of Human Rights, Annual Report 2012 , at 6 (2013).

[5] Eur. Court of Human Rights, Annual Report 2014 (Provisional Version) , at 5 (2015).

[6] Id .; Filtering is the judgments made on admissibility.

[7] The text of Rule 47 can be found in the Appendix that follows this update.

[8] Eur. Court of Human Rights, Report on the implementation of the revised rule on the lodging of new applications, at 2 (Feb. 2015) and supra note 5, at 5.

[9] Eur. Court of Human Rights, Report On The Implementation Of The Revised Rule On The Lodging Of New Applications , at 3 (Feb. 2015).

[10] Eur. Court of Human Rights, Annual Report 2013, at 67 (2014).

[11] Draft Revised Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms art. 3(5), in Fifth Negotiation Meeting between The CDDH Ad Hoc Negotiation Group and The European Commission on the Accession of The European Union to The European Convention on Human Rights: Final report to the CDDH, 47+1(2013)008REV2, ( Jun. 10, 2013 ),   http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_EN.pdf . (hereinafter Draft Revised Agreement)

[12] Noreen O'Meara, A More Secure Europe of Rights?" The European Court of Human Rights, the Court of Justice of the European Union and EU Accession to the ECHR , 12 German L.J. 1813, at 1823 .

[13] Draft Revised Agreement , supra note 10, art. 5.

[14] Id., at art. 7 (2).

[15] Id., at art. 10(3).

[16] Opinion Pursuant to Article 218(11) TFEU, CJEU Case C-2/13 (Dec. 18, 2014), http://curia.europa.eu/ [hereinafter Opinion 2/13].

[17] Steve Peers, The EU’s Accession to the ECHR: The Dream Becomes a Nightmare, 16 German Law Journal 213, at 215 (2015), available at http://www.germanlawjournal.com/index.php?pageID=11&artID=1673 .

[18] Melloni v. Ministerio Fiscal, CJEU Case C-399/11, paras. 60–61, 63 (Feb. 26, 2013), http://curia.europa.eu .

[19] Supra note 16, at 216, quoting supra note 15 at para. 191.

[20] Peers, supra note 17, at 216; Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms, arts. 1-5, Oct. 2, 2013, C.E.T.S. No. 214, available at http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=214&CM=8&DF=07/04/2015&CL=ENG

[21] The Chart of Signatures and Ratifications of Protocol 16 ( http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=214&CM=1&DF=&CL=ENG ) has two ratifications as of April 7, 2015.

[22] Peers, supra note 17, at 216.

[23] Opinion 2/13, supra note 15 at para. 212.

[24] Peers, supra note 17, at 216.

[25] Draft Revised Agreement, s upra , note 10, art. 3(2).

[26] Opinion 2/13 , supra, note 15, para. 234.

[27] Peers, supra note 17, at 216.

[28] Id. , 217.

[29] Opinion 2/13, supra note 15 at para. 254.