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Wednesday, April 27, 2011

Why the UK must play second fiddle to Europe's lead

Why the UK must play second fiddle to Europe's lead

High level Conference on the future of the European Court of Human Rights
26-27 April, Izmir (Turkey)

Speech by Thorbjørn Jagland, Secretary General of the Council of Europe

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Ladies and Gentlemen,

I will start by thanking our hosts, the Turkish Chairmanship of the Committee of Ministers, for having organised this important Conference and ensuring such a warm welcome in the beautiful city of Izmir.

We are gathered here today to find solutions to the important challenges faced by the European Court of Human Rights which, over the last 50 years, has become the world’s largest and most influential international court as well as its foremost human rights court.

The Court’s case-law has over the years raised the protection of human rights in all our member States to a higher and uniform standard. The Court has thus become the guarantor of long lasting international stability and peace.

If the Court fails, the Convention system fails; and if the Convention fails, the Council of Europe will fail.

Let me illustrate, with facts and figures, the challenges faced by the Court:

1. At the end of last month, there were 149,100 applications pending before the Court.

That is almost 30,000 more than when we met in Interlaken last February.

The Court is receiving far too many applications.

2. The overwhelming majority of these applications are inadmissible: in fact 9 out of 10 applications are declared inadmissible.

Most of these applications should never have been made.

3. In 2010, the Court found violations in 1,282 judgments.

Most of these judgments should not have been necessary because they related to problems for which the Court had already indicated solutions.

In other words, they were what we call clone or repetitive applications. There were about 25 000 such applications pending before the Court at the end of 2010.

Too many applicants are obliged to bring their applications to Strasbourg, because their national authorities are failing to resolve well-known, widespread problems.

As a result of these important challenges the Court is faced with, it is spending far too much of its resources on work that falls outside its core function.

This means less time can be devoted to the original and noble purpose of the Court: to examine applications that are of principal importance for human rights protection in Europe.

How can we respond to these challenges ?

Our priority must be to do something about the repetitive applications as well as the inadmissible applications.

1. In that context, the Court needs to exploit the full potential of Protocol no. 14.

I refer in particular to the new single judge procedure for dealing with inadmissible applications; and also to the new three-judge committee procedure, for dealing with repetitive applications.

I know that the Court has made excellent progress in implementing these two innovations.

At the same time, I am sure that there is still scope for improvement.

Why not have a small number of judges working full-time on filtering for a certain, limited part of their nine-year term of office?

The new admissibility criterion contained in Protocol 14 – that applicants must show that they have suffered “manifest disadvantage” – has great unexploited potential.

By using it more extensively, the Court could reject a greater number of unimportant cases by simple decision, instead of issuing judgments that are far more complex and time-consuming.

Protocol No. 14 has now been fully in force for almost eleven months; growth in the backlog has however continued and shows no signs of slowing down.

Protocol No. 14, therefore, may be palliative - but it will not be the cure.

2. The problem of repetitive applications is a fundamental issue.

When States find themselves confronted with applications involving familiar problems, they should more often propose solutions directly to the Court, without waiting for yet another judgment from the Court.

Friendly settlements and unilateral declarations can allow the Court to strike applications out of its list by a simple decision.

And if the settlement or declaration includes appropriate general measures, the underlying problem may be solved once and for all. Council of Europe relevant entities should be of assistance to member States in the adoption of general measures requiring amendments to the legislation or changes in the practice

3. The problem of inadmissible applications must be tackled from both sides: reduce the rate of incoming applications and increase the Court’s output of decisions to reject them.

Both the Court and I have taken, or are proposing various measures to provide better information to applicants on the role of the Court – and in particular on the limits to that role.

There are other, more radical possibilities for deterring inadmissible applications, such as introducing a system of fees for applicants or obliging them to have legal representation when applying.

These possibilities will continue to be examined.

What we cannot avoid however is to reach agreement on a new procedure or mechanism for filtering by the Court, one that goes beyond the single judge procedure and one that does not need any amendment to the Convention.

Once we have agreed on this, I am prepared to mobilize resources for the Court so that the filtering can be effective.

Ladies and gentlemen,

National experts have been discussing these issues– and others – since the Interlaken Conference.

I do understand that careful technical preparation is absolutely necessary, but it must be backed up by political determination: a recognition of the need for immediate action and a willingness, if necessary, to compromise in the wider interest.

The only completely unacceptable option is to do nothing, or – perhaps even worse – to tinker around the edges and imagine that this will be enough.

In the end, the big answers to the big problems can only come from the State parties themselves.

This should come as no surprise, since the Convention system is based on the principle of “subsidiarity.”

When we talk about subsidiarity in the Convention system, what do we mean?

First and foremost, we mean that “human rights protection begins at home.”

The States parties to the Convention have all voluntarily accepted to respect and protect the rights and freedoms it contains.

For the past ten years, the need for greater action at national level has been a constant theme of work on reform of the Convention system.

Yet the need is still there.

Violations of the right to fair trial, on account of the excessive length of domestic judicial proceedings, are still by far the most frequent form of violation found by the Court in its judgments.

The Court has for years been issuing judgments against a number of States in which it has found this kind of violation.

Subsidiarity also means that States must execute the Court’s judgments swiftly and fully.

The more judgments the Court issues, the more work the Committee of Ministers has in supervising their execution – and the Court’s output has increased impressively in recent years.

I therefore welcome the Committee of Ministers’ new working methods for supervision of the execution of judgments, and encourage all member States to co-operate fully and effectively.

Subsidiarity also concerns the Court. The President of the Court will inform you about the different measures taken by the Court in that respect following Interlaken.

Ladies and gentlemen,

I will repeat what I have already stated in Interlaken.

The Court is not an isolated body and cannot operate in an institutional, political or social vacuum.

The Court judgments provide authoritative interpretation of Convention provisions, underpinning our standard-setting and co-operation activities and giving important references to our other human rights mechanisms.

This is the driving force of the Council of Europe as an intergovernmental organisation.

Other Council of Europe mechanisms, institutions and programmes which help member States to fulfil their obligations without the need for Court judgments, are a reference point for the Court.

The Council of Europe is therefore indispensable to the effective functioning of the Convention system.

That is why, with the support of the Committee of Ministers, I am proposing far-reaching reforms to revitalise and streamline our work and preserve our relevance for the future.

The aim of these reforms will be to ensure greater impact and effectiveness – including cost-effectiveness – as well as greater visibility for priority activities in our central fields of human rights, democracy and the rule of law.

I am convinced that when these reforms are fully implemented, the number of applications before the Court will decrease.

In this connection, alongside our work on reform of the Convention system, we – the member States and the European Union together – are working to extend that system through accession of the European Union to the Convention.

European Union accession to the Convention is one of our highest priorities.

I am personally committed to helping to achieve a successful outcome as soon as possible.

Ladies and gentlemen,

Our work to ensure a sustainable, effective European human rights protection system is well under way.

Interlaken, along with the last State’s ratification of Protocol No. 14, marked a new starting point, and the Izmir Conference will mark an essential staging post for stock-taking, clarification and prioritisation.

I find it fitting to recall President John F. Kennedy’s words that as problems are made by men, solutions to the problems will also be found by men.

So let us be clear: the State parties to the Convention have a collective responsibility to bring this process to a sustainable, successful conclusion.

The Convention is Europe’s human rights badge of honour, made exceptional by the fact that the Court issues binding judgments on individual applications.

We must therefore renew our vigour and determination for the difficult tasks that still lie ahead: to ensure that future generations may benefit from the enormous advantages that the Council of Europe has brought to us by giving birth to the Convention and the Court.

Thank you

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