The right of individuals to appeal to the European Court of Human Rights in Strasbourg has to be protected. Governments must not try to hinder anyone from submitting a complaint and they must cooperate fully when the Court examines a case – relevant national documentation should willingly be provided.
The European Convention of Human Rights states that “the Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” (Article 34).
This right is a key component of the European human rights system. Everyone living within the jurisdiction of the States parties shall enjoy this right - refugees, stateless persons and irregular migrants included.
It is of particular importance that Governments do not hinder submissions to the Strasbourg Court. The Court itself has stated that applicants or potential applicants should be able to communicate with it freely, without being subjected to any form of pressure from the authorities to withdraw or modify their complaints.
The Court has described such pressure as including “not only direct coercion and flagrant acts of intimidation against actual or potential applicants, members of their family or their legal representatives, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy”.(1)
A report recently prepared within the Parliamentary Assembly of the Council of Europe gives examples of alleged intimidation against applicants, potential applicants, their lawyers and members of their families, preventing them from applying before the Court.
It also refers to information that individuals have been warned not to appeal in national courts, thereby preventing them from exhausting domestic remedies (which normally is a condition for an application to be deemed admissible in the Strasbourg Court).
These are very serious allegations. The fact that it has not been possible to corroborate some of them is no reason to trivialise the problem. Any such allegation should be thoroughly investigated and any tendency towards such abuse be prevented as a matter of urgency.
Indeed, politicians and others in position of authority should demonstrate that they do not object to complaints, and that “going to Strasbourg” is not in any way regarded as unpatriotic or as an act of political opposition.
During my travels, I have met persons who told me that they wanted to submit an application to the European Court of Human Rights, but feared that this would make them stigmatised as trouble makers. Such an atmosphere undermines the spirit of the Convention.
The report in the Parliamentary Assembly also contains a wide range of examples where the respondent state has willingly not cooperated with the Court and not provided it with the necessary existing evidence. Case files, or other relevant documents such as medical files have not been disclosed and witnesses have not been made available.
Such lack of cooperation violates a specific provision of the European Convention which makes it an obligation for States parties to provide all necessary information to the Court for the effective conduct of its examination of the case (Article 38).(2)
Another problem is that states sometimes fail to comply with binding interim measures which the Court decide upon in order to avoid an irreversible situation - such as an extradition to a country where there is a risk of torture.(3) When this happens, the Court is no longer in a position to examine the application properly nor to ensure that the applicant gets effective protection.
The Court itself has addressed this very problem and stated that States parties must refrain from “any act or omission which, by destroying or removing the subject matter of an application, would make it pointless or otherwise prevent the Court from considering it under its normal procedure.”(4)
Acts to discourage applications and the failure to fully cooperate with the Court are both serious matters which call for open discussion. The Committee of Ministers in Strasbourg has addressed these issues and will have to do so again.(5)
The time has come for all the Council of Europe member states to sign and ratify the important treaty adopted in 1996, which enables the right of individual petition to be exercised effectively - the European Agreement relating to Persons Participating in Proceedings of the European Court of Human Rights.(6)
The Parliamentary Assembly is right to put this high on its agenda. Pressure from parliamentarians is needed to ensure that all member governments support and fully cooperate with the Court.
We need not be reminded that the Strasbourg Court is a unique institution. Its creation was a historic achievement for the protection of freedom and security of individuals in Europe and it has set a model for the rest of the world.
The European Convention is now part of the national legal framework in all 47 member states of the Council of Europe. The judgments of the Court are therefore directly relevant as the authoritative interpretations of important elements of the law of the land throughout Europe.
This should contribute to ensuring that domestic remedies genuinely protect human rights and, consequently, that individuals will see no need to “go to Strasbourg” in the future. This is our vision. We will only move towards that direction if governments fully cooperate with the Court and protect the right to individual petition.
Thomas Hammarberg
Notes
1. Court’s judgment: Mamatkulov and Askarov v. Turkey, 4 February 2005, para 102
2. Also Rule 44a of the Court’s Rules
3. Such Court decisions are in accordance with Article 39 of its Rules
4. Court’s judgment: Mamatkulov and Askarov v. Turkey, 4 February 2005, para. 102
5. Resolution ResDH(2006)45 States obligation to co-operate with the European Court of Human Rights, adopted by the Committee of Ministers on 4 July 2006
6. CETS No. 161. Entered into force on 01/01/1999. As of 29/08/2007 the treaty is not signed by: Armenia, Azerbaijan, Bosnia and Herzegovina, Montenegro, Poland, the Russian Federation and Serbia; it is not ratified by: Estonia, Malta, Portugal, San Marino and “the former Yugoslav Republic of Macedonia”.