Conference on the future of the European Court of Human Rights
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I should like to start by thanking the Swiss Chairmanship of the Committee of Ministers for organising this extremely important Ministerial Conference. I also want to congratulate our hosts for their choice of venue. Interlaken not only provides a beautiful setting, it also symbolises the magnitude of the task ahead of us. In reforming the Court we have many mountains to climb.
But as high and as steep as these mountains may be, we must and we shall conquer them. We owe this to the people of Europe who have the right to expect that we shall succeed in safeguarding the mechanism which has looked after their human rights over the past half a century. I do not think that I am overly dramatic when I say that what is at stake is not only the effectiveness but the survival of the European Court of Human Rights.
What is the situation today ?
First, there are almost 120,000 pending applications before the Court. The Court's "output" of decisions is increasing but, clearly, it is not enough. And the backlog is increasing by almost 2,000 applications each month.
Second, over 90% of these applications are inadmissible. This is a huge amount. And what does it say about human rights protection in our member States; about implementation of the Convention; about knowledge - or ignorance - of the Convention and the Court's case-law, and about public confidence in public institutions?
Third, every year the cost of the Court is increasing within the overall budget of the Council of Europe, and you know that this budget is a zero real growth budget.
The system is facing serious problems.
We have to find urgent solutions to lower the number of applications which reach the Court, and to deal in a more efficient way with applications which will continue to reach the Court.
But, first, we have to be clear. What do we want? Do we want to slowly kill the programme of activities of the Council of Europe so that the Court survives? Or do we want to have a streamlined and impact-oriented programme of activities of the Council of Europe supporting an efficient Court of Human Rights? I will come back to this point further.
I do not intend to repeat everything that I set out in my written contribution to this Conference. I stand by my proposals. For now,
I will simply recall some of the most important points.
Above all, we need a better and more systematic use of the principle of subsidiarity. State Parties have the primary responsibility to respect human rights, to prevent violations and to remedy them when they occur.
All States parties have now incorporated the Convention into their national legal systems, but not all have done so with satisfactory effect.
What we need to achieve is a genuine structural integration of the Convention into national systems, in order to secure its direct application; we need a better implementation of its provisions, including, above all, the obligation to provide effective domestic remedies for alleged violations.
The Convention cannot be fully and effectively implemented at national level unless the authority of the Court's case-law is properly recognised in the national legal order.
Most obviously, States must promptly and fully execute judgments in cases to which they are party, including any general measures that may be required.
But that is not all. National authorities must also take sufficient account of the general principles in the Court's case-law that may have consequences for their own law and practice. There is much room for improvement here in many countries.
We must look for ways to deal with the fact that most of the applications which are submitted to the Court are eventually declared inadmissible. They are still causing a bottle-neck in the system.
I believe that better provision of objective information to potential applicants may lead to fewer inadmissible applications.
We should explore whether and how the Council of Europe and independent national human rights structures can contribute to this.
And it is not only the applicants who should have a better knowledge and understanding of the Convention system and the admissibility criteria, it is also, in many cases, their legal representatives. This should be improved through clear, consistent and accessible case-law of the Court on admissibility and just satisfaction.
In part, this is a task for the Court itself, when drafting judgments and decisions. But accessibility is also an important task for the States parties, who have a responsibility to translate, where necessary, and to disseminate the Convention and the case-law, as well as to ensure that they are integral parts of university law teaching and professional legal training.
It is also clear that the Court must be given new procedures for dealing with inadmissible cases, in addition to those found in Protocol No. 14.
One of the most important tasks for this Conference, therefore, is to propose an avenue for future work to improve the filtering of applications.
A key short-term measure, applicable without an amendment of the Convention, is to set up a filtering mechanism made up of the judges of the existing Court, based on a system of rotation among the judges, to deal with inadmissible cases and applying strict management procedures.
The third point I attach crucial importance to is to looking at the situation of the Convention system against the background of the Council of Europe as a whole.
The Convention is a treaty of the Council of Europe and there are strong institutional links between the two. The Committee of Ministers, the Secretary General, the Parliamentary Assembly and the Commissioner for Human Rights play important roles.
The Court is not an isolated body and cannot operate in an institutional, political or social vacuum.
On the one hand, its judgments provide authoritative interpretation of Convention provisions, underpinning our standard-setting and
co-operation activities and giving important references for our other Human Rights mechanisms.
On the other hand, those other Council of Europe mechanisms, institutions and programmes which help member States to fulfil their obligations without the need for Court judgments in individual cases, are a reference point for the Court.
The Council of Europe's other human rights mechanisms, including the Commissioner and the various monitoring bodies as well as standard-setting and co-operation activities are therefore indispensable to the effective functioning of the Convention system.
We must not deceive ourselves that we can save the Convention system and improve the respect for human rights in Europe by feeding the Court by starving other Council of Europe activities in the field of human rights, the rule of law and democracy.
While such an approach may help the Court increase its output, it would reduce the scope and impact of our work to help States improve their implementation of the Convention. The more such help we can give, the less, in the long term, should be the need for individuals to apply to the Court.
We need to consider how best to invest in the future of the Convention system at all levels, in order to achieve the greatest long-term results. Not only financial investment, but also investment in
co-operation with other actors, whether governmental or non-governmental.
As Secretary General, I am ready to take the necessary action to focus the allocation of the Council of Europe's resources on our core activities of promoting and protecting democracy, human rights and the rule of law – but let me be clear about one thing - I am unreservedly against any further transfers of funds from the Council of Europe programmes of activities to the Court.
If we want to preserve our unique mechanism for the protection of human rights, we need to safeguard the Court's capacity to deal with individual applications on violations which already occurred, as well as the Council of Europe's capacity to transform the Court's case-law in general measures preventing new violations from taking place.
The fact is that the Council of Europe needs the Court, and vice versa. Our organisation without the Court would risk to be seen as a toothless tiger. On the other hand, an organisation which would only deal with breaches of human rights which already occurred, without doing anything to prevent them happening in the future, could be perceived as a fig-leaf operation for the governments, providing them with a human rights reputation at the lowest possible cost – but also with the lowest possible effect.
The objective of this Conference, in my view, is to find new, creative and effective measures to save the Court and avoid the two risks. This is not going to be easy, but we will do it. We will climb this mountain because we do not have any other choice. People in Europe – and their human rights – deserve no less and will get no less.
22 December 2017
Letter to the President of Romania, Klaus Iohannis