Russian ratification of Protocol 14 is good news, but more is needed
The Russian State Duma voted 15 January 2010 in favor of a draft law ratifying Protocol 14 of The European Convention of Human Rights (ECHR), after delaying ratification for more than three years.
– Russian authorities have given an important message that they want an effective European Court on Human Rights. About 30% of the applications to the Court are from Russian citizens, says Deputy Secretary General Gunnar M. Ekeløve-Slydal. – Protocol 14 simplifies it’s procedures on deciding admissibility of cases and on handling obvious cases. But even a much more speedy Court may not solve the bigger underlying problem: the precarious human rights situation in the Russian Federation and the lack of thrust by its citizens in domestic institutions and remedies.
Protocol 14 was adopted in 2004 as part of a reform package in order to ensure that the Court would have the capacity to handle an increasing backlog of cases. More than 90% of the applications received by the Court are deemed inadmissible for various reasons. However, taking decisions on admissibility takes a large part of the Court’s capacity. Protocol 14 is therefore important in that it frees Court resources to handle serious human rights cases.
The backlog of cases has been increasing dramatically in recent years. Experts maintain that Protocol 14 is part of the solution to resolve the current crisis of the Court and could speed up the Court by 20-25%. But it is not sufficient in itself to solve the crisis.
Important proposals have been put forward by different actors, including the Group of Wise Persons to the Committee of Minister of the Council of Europe, on how to ensure the future effectiveness of the Court. However, a series of other issues remain important in ensuring the survival of this unique human rights mechanism. Many of those issues rest with national governments to deal with.
Authorities in member states need to adopt efficient measures domestically to strengthen respect for human rights and create understanding of the proper role of the Court among professionals as well as among the public at large in order to diminish the flow of applications. In particular those countries which are the origin of large numbers of applications, such as the Russian Federation, Turkey and Romania, should priorities such measures.
A group of Russian civil society organizations, the Moscow Helsinki Group, Memorial, and Demos, together with the Norwegian Helsinki Committee (NHC) arranged a seminar in Moscow 12 February 2008 in order to discuss the relationship between Russia and the Court. Among the issues discussed was the need for domestic reforms to improve implementation of judgments.
The seminar pointed at the need for Russian authorities to take steps to provide translation and official publication of judgments and decisions of the Court, as well as comments and explanations clarifying the meaning of these judgments and decisions. Additionally, clarifications issued by the Plenary Supreme Court of the Russian Federation could play a great role in upholding human rights.
Russian authorities should establish mechanisms which guarantee that necessary legislative reforms are undertaken in order to implement judgments of the Court, and find ways to ensure that the functioning of state and local institutions are in line with Court rulings. In addition to establishing such control mechanisms, authorities should strengthen teaching on the legal standards adopted by the Council of Europe. In particular, judges and other relevant officials should be properly trained in Council of Europe treaty law as well as case-law of the Court.
The Norwegian Helsinki Committee is arguing, that in reforming the Court, focus should not only be on how to ensure its effective functioning but also on how to strengthen protection of appellants, witnesses and lawyers involved in particularly serious cases. It is positive that the government of the Russian Federation on 2 October 2009 adopted a Witness Protection Program for 2009-2013. However, there might still be a need for supplemental measures in order to protect appellants and witnesses as well as their lawyers.
Such a protection mechanism could be based on agreements between the Court and/or the Council of Europe and member states that they will receive and provide temporary protection to persons at risk because of their involvement in cases before the Court. The mechanism should not be linked to cases raised by Russian citizens only, but rather functions as a protection mechanisms linked to cases of a particular serious nature, involving torture, disappearances, and other serious crimes, and if there is reason to believe that there is a real security risks for the persons involved in the case.
The next important venue for discussing the future of the Court will be at the 18-19 February 2010 Interlaken Conference. The purpose of this conference is to have the Council of Europe member states to reaffirm their commitment to the protection of human rights in Europe and to draw up a roadmap for the future development of the Court.
The Secretary General of the Council of Europe, Thorbjørn Jagland, and the Commissioner for Human Rights, Thomas Hammarberg, have both published their contributions to the Interlaken Conference, in which they stress that existing standards have to be enforced systematically at national level if human rights violations are to be avoided.
An additional important point, underlined by civil society organizations throughout all reform debates, is that reforms of the Court never must jeopardize the principle of individual right to application. That principle should remain a corner stone of the system, preserving the right of individuals to receive a binding determination from the Court as to whether the facts presented in admissible cases constitute a violation of the rights enumerated in the European Convention on Human Rights.
At 50 years old, the European Court of Human Rights in Strasbourg is sometimes held up as a model for the rest of the world – the most efficient regional court devoted to protecting individual human rights against abuses of state power. It was designed after Second World War as a part of efforts to ensure that democratic Europe would stay democratic, peaceful and respectful of individual dignity. It sees itself as "the conscience of Europe".
However, Central and Eastern Europe remained outside the Court until after the democratic revolutions of 1989 and 1991. In a few years afterwards, almost all of Europe became part of the system, giving about 800 million people the option of filing an application asserting that one of the 47 member states of the Council of Europe had violated their human rights (as defined in the European Convention on Human Rights and a few additional protocols). Russia became part of the system in 1996.
However, the future of the Court is now the subject of highly sensitive debates that until the 15 January 2010 decision of the Russian State Duma also has been seen as a test of Russia's commitment to human rights and democracy.
The court have issued more than 10,000 rulings that have held member states to account for torture, unlawful killings, stifling freedom of expression and a range of other violations – often to the great discomfort of the countries involved. The most serious cases to date have without a doubt involved Russian and Turkish citizens. However, in spite of any level of disliking its judgments, in order to be part of the system the member states have to implement the Court’s judgments.
The courts machinery for delivering human rights justice is badly clogged up. A record 120,000 cases are waiting to be dealt with, and the backlog is growing all the time. Even though a large majority of those cases (more than 90%), eventually will be deemed inadmissibility, for the Court to find out which cases it has to deal seriously with takes a lot of resources. More resources than it has.
Commonly it takes six years or more after a case is registered for a judgment to be made. Critics have constantly been saying that justice delayed is justice denied, and that the system is in crisis.
Some would say that it is natural that the case load has grown as the population of Council of Europe member states has expanded to 800 million. But there is more to it. According to many experts, the real problem is the persistent failure of some countries to implement the court's rulings in order to prevent similar human rights violations to reoccur.
However, an even more serious issue may be at hearth of the problem. The Council of Europe accepted the former communist states of Eastern Europe as new members in the 1990s, knowing that all of them were not up to the standards on human rights and democracy. It simply calculated that by letting them in, they would reform. That was partly a miscalculation.
The reason behind large numbers of applications from Russian, Romanian and Turkish citizens are not only that these people are misinformed on how and on what issues they may complain to the Court about their authorities. It is also because people in these countries do not thrust their own institutions and authorities, and because there are many human rights violations still taking place in these countries. For the court it is worrying that there is a potential also in other member states for a steep increase of applications.
Protocol 14 is an important part of the necessary reforms to strengthen the capacity of the Court. 46 of the 47 Member States soon ratified the Protocol, but the Russian State Duma rejected it in December 2006. When Vladimir Putin, the then Russian president explained why Russia would not ratify the protocol, he blamed the decision on what he called the "politicization" of some court judgments against Russia.
The president of the Council of Europe's Parliamentary Assembly at the time, Rene van der Linden, responded firmly that if the Court rules in favor of a citizen whose claim has not been satisfied in the courts of his country, this should be seen as a decision to protect the citizen, not as an attack on the state concerned.
The Russian decision to ratify Protocol 14 was an important breakthrough in Russia’s relationship with the Court. President Dmitry Medvedev has spoken of the need to end "legal nihilism" in Russia and secure the independence of its courts. The European Court of Human Rights could be seen an important contributor to abolishing this state of legal nihilism. A strong Court is therefore in the best interest of Russia.
Protocols 14 and 14bis
Protocol 14 was adopted in 2004. Among its main features is that:
* A single judge can decide on the admissibility of a case (currently, three judges decide) (Article 7)
* A committee of three judges may render a judgment on the merits, “if the underlying question in the case concerning the interpretation or the application of the Convention or the Protocols thereto, is already the subject of well-established case-law of the Court” (Article 8)
* A case may be deemed inadmissible if “the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.” (Article 12)
* “If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the Committee.” (Article 16)
* “If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfill its obligation under paragraph 1.” (Article 16)
Because the Russian rejection of Protocol 14 effectively obstructed the reform process of the Court, a Protocol 14bis was adopted in May 2009.
Pending the ratification of Protocol 14 itself, 14bis allows the Court to implement revised procedures in respect of the states which have ratified it. It allows single judges to reject manifestly inadmissible applications made against the states who have ratified the protocol. It also extends the competence of three-judge committees to declare applications made against those states admissible and to decide on their merits where there already is a well-established case law of the Court.
Protocol 14bis will cease to have any effect as soon as Protocol 14 enters into effect.