Rona AYBAY*

Introduction

With more than 80 000 applications to deal with, and a constantly growing backlog, the The European Court of Human Rights  is facing serious problems as an effective guarantor for human rights protection.These problems were referred to in the Preamble of the Protocol Nr.14 [1] in the following terms:

“Considering the urgent need to amend certain provisions of the Convention in order to maintain and improve the efficiency of the control system for the long term, mainly in the light of the continuing increase in the workload of the European Court of Human Rights and the Committee of Ministers of the Council of Europe;

Considering, in particular, the need to ensure that the Court can continue to play its pre-eminent role in protecting human rights in Europe...”

The innovations to be introduced by the new Protocol will, definitely,  help reducing the workload of the Court. However,  as these innovations appear to be not entirely  sufficient  certain additional measures will still be needed.

  The purpose of this short article    is to share certain thoughts with my colleagues and readers on these possible “additional” measures.  These thoughts relate to a process of “conciliation” to be incorporated in the protection mechanism of the European Convention on Human Rights (ECHR).

They are based on a main “assumption” (or expectation) that an effective system of conciliation will help in reducing the number of applications to the European Court of Human Rights (the Court).

It should be noted that the proposed system includes certain main principles such as “equality” and “ uniformity ” [2] which must be strictly observed.

My thoughts on some details are explained in the following paragraphs.

Obviously, these are not meant to constitute a panacea  but some thoughts put forward for discussion among the interested parties. 

Main Assumption (Expectation):

An effective system of conciliation will help in reducing the number of applications to the European Court of Human Rights (the Court) because:

(i)                         It would be found preferable by the possible applicants, as it will speed up the time for resolution of cases  and there will be no need to deal with long and complicated Strasbourg procedure.                                            

(ii)                      The States Parties may find it useful, mainly because under such a system they would not have to defend cases before the Court in Strasbourg, where they are faced with the possibility of being found in breach of the European Convention on Human Rights (ECHR) by the Court.

Principles:

(i)  Any system of conciliation should, by definition, be in conformity with the standards of the ECHR protection mechanism; i.e. there should be no room for lesser protection than what is presently available;

(ii) Uniformity and equality must be secured; i.e. exactly the same possibilities to all applicants must be made available against all Member States.

Any scenario which functions in only certain countries would be against the principle of equal treatment of the applicants. What is available for one applicant against one State Party should be equally available to all applicants against any State Party.

(iii) The system of conciliation must function under the supervision of a “Strasbourg based” central organ. This supervision will secure uniformity and observation of conformity with the fundamental “Strasbourg standards”

by all Member States.

Implementation (Technicalities):

In order to have an effective system of conciliation, certain technicalities should be given serious thought at the outset and the necessary regulations of legislative and other natures should be introduced.  Below are some of these technicalities:

(i) Mandatory or optional methods of conciliation?

Optional and informal ways of conciliation, that can be employed  prior to bringing the case before the Court in Strasbourg , are already available in certain jurisdictions. [3] .

The system I propose can be effective only when conciliation is mandatory rather than optional. Admittedly, the very term “mandatory” has a negative and unpleasant connotation. However, conciliation—which seeks to reduce the number of cases before the Court—can serve its purpose only when and if it is mandatory.

It should be noted, however, that this means an additional “domestic remedy” to    be exhausted before the Court starts dealing with the case.

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(ii) Additional time to be spent at the national level

As I indicated above, introduction of a system of mandatory conciliation would, inevitably, create an additional level of domestic remedy to be exhausted before a case is brought before the Court. Naturally, this would cause certain delay on the part of the applicant.

For this reason, in order to avoid undue delays, it should be provided that if the parties cannot reach a settlement in mandatory conciliation procedure within a determined period,  the applicant would be free to apply to the Strasbourg Court. A period which  does  not exceed a few months may be regardes as  “supportable” or “tolerable”.

(i)                          Special provisions for exceptional cases

The States Parties should be given the opportunity of asking for extension from the central authority in Strasbourg in exceptional cases where circumstances require more time for examination of the details.

On the other hand, in urgent cases the applicants may have the possibility of  lodging their applications directly with the Court.

(iii) What National Organ (Authority)?

Every Member State should designate one national “organ” or “authority” to be responsible for receiving applications and organizing and facilitating negotiations between the applicant and the Administration (relevant authority).  

In those countries where an effective system of “ombudsman” (ombudsperson) exists, this task may be assigned to the relevant Ombudsman's Office. In countries where there exists more than one Office of Ombudsman , the national legislator may choose one of them.  Such legislation should be in conformity with the main principles of “equality” and “uniformity” as explained above.

In countries where there is no ombudsman or any comparable institution (office) the national legislator should create one to deal with “mandatory conciliation”.

(iv) What Strasbourg Organ (Authority)?

Obviously, the Strasbourg Organ would be created and regulated by decisions taken in Strasbourg . Perhaps, the Human Rights Commissioner's mandate may be extended by way of interpretation so as to include the tasks related to mandatory conciliation. In this connection, it should be noted that under Protocol No.14 the Human Rights Commisisoner will have a more active role in contributing to the work of the Court [4] .

If this were achieved, the Commissioner would first see to it that, in this respect, every Member State has a national system of legislation in conformity with Strasbourg standards.

Seminars, visits, meetings and other contacts between the Human Rights Commissioner and the relevant national authorities (Ombudsperson Offices)  may help in setting up the “groundwork” for the system.

* Prof.Dr.;President, Human Rights Practice and Research Center , Uhion of Turkish Bar Associations

[1] Protocol No.14 to the Convention for the Protection of Human Rights and Fundamental Freedoms amending the control system of the Convention, Strasbourg 13 May 2004 (CETS No.194)

[2] See below,  “Principles” (ii)

[3] Also “friendly settlement proceedings” are available under Articles 33/b and 39 for cases already before the Court.

[4] “In all cases before a Chamber or the Grand Chamber, the Council of Europe Commissioner for Human Rights may submit written comments and take part in  hearings” (new art.36/3)