In the daily whirlwind, we do not always realize how deep the ties with the EU are. Usually one mentions the interweaving of historical destinies, the richness of cultural heritage, geographical proximity. But the list, of course, is much longer. In recent years it has been supplemented by the similarity of approaches to state and legal construction, firm support for international law, and the proclamation of the unconditional priority of the human person. To this should also be added joint work in international structures of an integration type, specific to the European continent and primarily operating on the basis of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The European Convention belongs to the category of international legal acts of a new generation. It establishes the obligations of participating states not only towards each other, but also towards their own populations. It sets a common standard regarded by the countries of the region as a supreme value. A European citizen, wherever he or she may be - in Germany or Portugal, the Netherlands or Romania, Sweden, Macedonia, Russia or Ukraine - has the opportunity to enjoy the rights and freedoms guaranteed by the Convention. If they are violated, then, relying on the Convention, he or she can seek their restoration and payment of compensation in national courts and then in the European Court of Human Rights.
The Committee of Ministers of the Council of Europe monitors the restoration of violated rights in cases that reach the Strasbourg Court. In accordance with the Convention, it supervises that the offending state fully pays the money due to the victim, eliminates all negative legal consequences of the violation, and takes measures of a legislative, administrative or other nature necessary to prevent similar violations in the future.
Supranational bodies operating on the basis of the European Convention thus perform a dual mission. On the one hand, they help protect any person, group of individuals, or organization from injustice when the national legal system fails. On the other hand, they force all European states to constantly renew, modernize, and improve their domestic law and governing institutions.
For both our state and the EU, the effective functioning of the European Court and the Committee of Ministers is of great importance. This is the calling card and condition for the existence of Greater Europe, of which they are parts drifting towards each other. The European Convention reflects the constitutional traditions of European countries. According to Article 6 of the EU Treaty, they constitute the core of the principles on which the Union is founded. They are repeated in the Charter of Fundamental Rights and the draft EU Constitution. The European Court and the Committee of Ministers make a great contribution to the uniform application and interpretation of the Convention's provisions throughout Europe and to the accompanying adjustment of national legal systems.
In recent years, the European Court and the Committee of Ministers have had more work. It has become more than the convention bodies are able to handle. In order for them to continue to cope with their assigned tasks, the Council of Europe has prepared a comprehensive procedural reform.
The European Court enjoys enormous popularity among the population of European countries. Both ordinary people and successful businessmen often perceive it as a counterweight to the rigidity, bureaucratism, and corruption found in national institutions. They see in it hope for the restoration of justice that they failed to achieve at home. There are tens and hundreds of thousands of such cases, whether they involve unjustified arrests and humiliation of human dignity, or encroachments on freedom of speech and refusal to freely use one's property. Practicing lawyers, advocates, and large law firms readily turn to the assistance of the European Court in seeking to defend their clients' interests.
The European Court enjoys equally great popularity among national courts. According to European constitutional tradition, it is the court that bears the main responsibility for the protection of human rights, the maintenance of legality and the rule of law. Strasbourg provides the national judge with ready-made examples of how to apply a rule of law in a typical situation. Its explanations enhance legal certainty, which is highly valued by all judicial bodies. It is now difficult to imagine the practice of the highest courts of European countries, as well as the Court of Justice of the EU and the EU Court of First Instance, without references to the judgments of the Strasbourg Court. They are also perceived as precedent by the legislative branch.
In most European countries, checking compliance with the requirements of the European Convention and the case law of the European Court has become a mandatory stage in the preparation and passage of any draft law through the government and parliament.
European countries are not afraid or ashamed of losing a case in Strasbourg. Losing cases allows them to see gaps in national legislation and shortcomings in law enforcement practice. This helps the countries of the continent develop a common legal culture and ultimately advance along the path of integration.
But the fame of the Strasbourg Court, the authority it has managed to win, and the hopes placed in it have taken an unexpected turn: the flow of complaints to the European Court has begun to grow rapidly. More and more people from different countries are rushing to it with their grievances. The circle of states party to the European Convention has expanded. In the first 44 years of its existence, up to 1998, when the entire European mechanism for the protection of human rights was restructured, the Strasbourg Court delivered 38,389 decisions and judgments. In the subsequent five years - 61,633. In 1990, 5,279 complaints were filed with it. In 1994 - 10,335, 96% more. In 1998, there was another leap - to 18,164 complaints. The increase was 76%. In 2002, the number of complaints filed reached an incredible figure - 34,546 (an increase of 90%). In 2003 - 39,000. As a result, the Strasbourg Court simply began to choke.
The position of the Committee of Ministers also became more complicated. It faced a situation where states need to be required to carry out structural, systemic reforms. Otherwise, the European Court will be flooded with clone cases, as happened in the late 1990s. An avalanche of lawsuits was then filed against Italy over violations by that country's courts of reasonable time limits for proceedings in criminal, administrative and civil cases.
In short, now, after a thorough rationalization of all internal procedures, the Strasbourg Court has reached the peak of its capacity: it is able to process 1,500 applications per month. Is that a lot? Yes, but more than 2,300 are already arriving each month! It is no wonder that by the beginning of 2004 the number of pending cases had jumped to 65,000. And the processing times exceeded an acceptable level.
But the problem is not only overload. A lion's share of the European Court's time is spent on weeding out inadmissible applications and routine consideration of repetitive cases. In 2003, it adopted decisions on inadmissibility for 17,270 applications and accepted only 753 (about 4%) for examination on the merits. Of the 703 judgments delivered last year, 60% concerned clone cases. It turns out that the highest European judicial authority spends its main efforts unproductively. Less and less time and energy remains for dealing with "pilot" (or precedent) cases...
Preparation for reforms began several years ago. In general terms, the question of the need for vigorous measures to ensure the long-term effectiveness of the Strasbourg Court and the entire European mechanism for the protection of human rights was raised in the final documents of the specialized ministerial conference of the Council of Europe on human rights, held in Rome on November 4, 2000. Having received the detailed report it had commissioned on possible directions for reforms, the Committee of Ministers soon began practical work.
It is necessary to strengthen the staffing and resource base of the European Court, optimize internal procedures, and establish stricter control over the execution by states of the court judgments delivered against them. An interim result of the efforts undertaken was summed up by a recent session of the Committee of Ministers. It ordered states to bring national legislation and law enforcement practice into line with the case law of the European Court, obliged them to ensure that newly drafted legislative acts comply with the standards established by the European Convention, and pointed out the need to further improve national judicial systems. But the main thing is that it proposed introducing significant procedural amendments to the European Convention, to be enshrined in the new Protocol No. 14 to it. The session included a systematic presentation of the approved measures in the Declaration of the Committee of Ministers on ensuring the effectiveness of the implementation of the European Convention on Human Rights at the national and European levels.
Protocol No. 14 is much less radical than some proposals put forward in the early stages of its preparation. For example, ideas about creating regional human rights courts subordinate to the Strasbourg Court were rejected from the very beginning. The Protocol strikes a reasonable balance between two competing maxims underlying the European protection mechanism, according to which the European Court must respond to any complaints submitted to it, while at the same time not replacing or pushing aside national courts.
The Protocol is very pragmatic. On the one hand, it reduces the pressure on the European Court from applicants who deluge it with insignificant complaints; on the other, it increases its productivity. It dramatically simplifies the procedure for weeding out inadmissible applications, speeds up the examination of repetitive cases, enhances the flexibility of the Strasbourg Court's internal structures, and opens the way for bringing states to account for delays in executing the judgments delivered against them.
Thus, in accordance with the Protocol, the internal organization of the European Court is supplemented by a new structure - a judicial formation consisting of a single judge. It is empowered to make final decisions on the inadmissibility of applications, that is, to close their examination. Committees of three judges are entrusted with issuing judgments on clone cases for which there is well-established, settled practice. Appeals against these decisions and judgments are not allowed. It is obvious that all these measures are capable of significantly relieving the Strasbourg Court.
For the approved reforms to be realized, political will, additional money, and a great deal of painstaking work are needed. But the efforts are worth it.
Mark ENTIN,
Director of the Institute
of European Law, MGIMO.