After Interlaken ECHR Will Resemble Kafka’s “The Castle”

On February 18-19, in the Swiss city of Interlaken, the Council of Europe’s Committee of Ministers met to devise ways to reform the overburdened European Court of Human Rights (ECHR). A joint declaration was issued setting the course for the future reform of the ECHR.

The Interlaken Declaration cites the necessity of reaching a balance between the incoming cases and the settled ones and to reduce the volume of approximately 120,000 outstanding cases. It also states that new appeals should be dealt with in reasonable time Ara Ghazaryan, an attorney with the firm “ARNI Consult”, describes the Interlaken Declaration as resembling   Franz Kafka’s “The Castle”; a novel about alienation and bureaucracy that portrays the protagonist’s endless struggle to gain access to the mysterious authorities of a castle who govern the village where he wants to work. Mr. Ghazaryan argues that the procedural process for cases to be accepted by the ECHR has been fundamentally altered by the Declaration, and not necessarily for the better.

A need to streamline court procedure and case backlog

At Interlaken, the Committee of Ministers were tasked with discussing and debating Protocol 14, a reform which would enable a single judge to decide on the admissibility of applications and a panel of three judges to rule on routine cases. Current court procedures   require a three-judge committee to rule on the admissibility of applications and a seven-judge panel to hear routine cases. Essentially, Protocol 14 was a fast-track procedure first proposed in 2004. Prior to the February meeting, all 47 Council members, bar Russia, had ratified Protocol 14. Russia was a hold out even though it was the accession of Russia, Ukraine and Romania to the Council of Europe in the 1990s precipitated a flood of court applications. These states now account for 45 per cent of all pending applications and, at current levels, the backlog will grow to 300,000 applications within five years. It was this backlog and the fact that it can take seven years for a ruling to be issued by the judges that prompted the urgency for streamlining ECHR procedures. The Court’s credibility was being questioned. Russia’s Duma finally voted in favor of Protocol 14 on January 15, 2010 and The Minister of Justice of the Russian Federation, Alexander Konovalov, presented the instruments of ratification   to the Secretary General of the Council of Europe, Thorbjørn Jagland, at the Interlaken meeting. Protocol 14 will thus come into force for all CoE members on June 1, 2010. In order that the ECHR be able to handle an ever increasing workload of cases in a reasonable timeframe, especially those involving serious human rights violations, the Interlaken Declaration highlighted several areas in need of review. Inadmissible applications need to be filtered out rapidly and efficiently Point 6 of The Declaration reads, “The need for effective measures to reduce the number of clearly inadmissible applications, the need for effective filtering of these applications and the need to find solutions for dealing with repetitive applications.” The Declaration also calls on all CoE member states to “fully, effectively and rapidly execute the final judgments of the Court” and “invites the Court to make maximum use of the procedural tools and the resources at its disposal”. Evidently the Committee of Ministers wanted to grant the ECHR the procedural power to effectively cut the number of “Unworthy” cases and to bolster the actual execution of its verdicts. In a word - operational efficiency and cost-cutting. To strengthen future collaboration between intra-state courts and the courts, the Committee of Ministers called for the creation of a network that would allow intra-state courts to petition the European Court for consultations regarding the legal interpretation of the European Convention of Human Rights. With regard to the high number of inadmissible applications, the Conference invites that Committee of Ministers to consider measures that would enable the ECHR to concentrate on its essential role of guarantor of human rights and to adjudicate well-founded cases with the necessary speed, in particular those alleging serious violations of human rights. With regard to access to the ECHR, the Conference calls upon the Committee of Ministers to consider any additional measures which might contribute to a sound administration of justice and to examine in particular under what conditions new procedural rules or practices could be envisaged, without deterring well-founded application. These measures, for example, may include the payment of court fees, attorney presence in all stages of a case, the obligatory use of official ECHR languages, etc.

“Action Plan” calls for immediate implementation of verdicts

In its Action Plan designed to cut the number of inadmissible applications and the more efficient review of these cases, the Conference also proposes that the Committee of Ministers also create a filtering mechanism, in addition to the one judge procedure, with possible alternatives. What the Conference has stressed in its Declaration is the need for a thorough analysis of the ECHR’s practice relating to applications declared inadmissible Armenian attorney Ara Ghazaryan and Artak Zeynalyan presented their concerns about the draft Declaration to the Committee of Ministers. While welcoming the initiative of the Committee regarding a reasonable timeframe for the review of petitions to the ECHR, the attorneys noted that the concerns expressed in the Declaration’s introduction merely substantiated the suspicions of Armenian lawyers about the continuous drop of quality of ECHR verdicts; something that has been evident during past years. “However, in our estimation, the proposed measures in the Declaration draft only serve to further distance average citizens from the ECHR and transform the Court into the castle depicted by Franz Kafka in his novel of the same name. In the book, the more individuals try to gain entry to the castle, the more it moves away from them,” the lawyers explained. The Armenian attorneys noted that according to statistics, 20% of all applications presented to the ECHR are clearly admissible and that 80% of the applications from Armenia are clearly admissible, but that only 4% are actually reviewed. We must take into account that the number of applications presented to the ECHR today numbers around 150,000. While welcoming the heightened role of the Committee of Ministers regarding the execution of Court verdicts, it is expected that intra-state courts requesting Convention interpretations will have to apply to the Committee of Ministers within specific work parameters. Appeal cases launched on the basis of European Court decisions can only serve as specific work. If this is so, it is incomprehensible why the possibility is being granted intra-state courts to petition the Committee of Ministers to receive advice on the legal interpretation of the Convention, while the citizen that wins in court cannot.

Right to apply for interpretation should be universal

In the opinion of the Armenian attorneys the right to apply for interpretation must be granted to all citizens, particularly when you consider that the Court, as a rule, rejects applications filed for receiving interpretation. (In its entire history, the Court has only passed three such decisions). “We strongly oppose that the ECHR set down state fees, the mandatory presence of attorneys and the use of official court language when presenting applications. Such procedures will essentially complicate applying to the Court and will increase associated costs. Even given today’s conditions of accessibility when presenting applications, it’s a costly process.

There’s attorney fees, postage costs, etc,” the Armenian attorneys argued. Regarding complaints that are considered inadmissible, the prospect to thoroughly review the Court’s procedural process is an interesting initiative, especially when court documents of decisions ruling that petitions are inadmissible and court records registered in the decision-making process are not made available to the authors of the complaints.

The most criticized feature of Protocol 14, according to the Armenian attorneys, is the new admission standard named “serious consequence”, whose implementation has been vociferously opposed by all progressive organizations and individuals engaged in the defense of human rights. Nevertheless, considering the excessive workload of the Court to be the highest priority, it was decided to include this criterion. As a result, the Court is able to consider as inadmissible even those applications involving human rights violations but where the individual in question hasn’t suffered serious damage as a result.

Ara Ghazaryan and Artak Zeynalyan have correctly pointed out that for citizens, the problems confronting the European Court cannot be differentiated in terms of size if they relate to violations of the European Convention on Human Rights.