Civil Society needs to monitor the media, politicians and the Council of Europe

Civil Society needs to monitor the media, politicians and the Council of Europe

Reform of the European Court of Human Rights began back in 2001. The European Ministerial Conference on Human Rights, held in Rome in November 2000 considered that the effectiveness of the Convention system was an issue. The problem being the ever increasing case load before the ECtHR. This increase is not just as a result of more Member States joining the Council of Europe, but also more applications being received from long established Member States where the Court's judgments had not been implemented.

Since 1950 the Convention has been supplemented and amended several times by Member States using additional Protocols to reflect the changing needs and to developments in European society. Protocol 14 is designed to amend the control system of the Convention.

"11. Indeed, the Convention’s control system is unique: the Parties agree to subject themselves to international judicial supervision of their obligation to secure to everyone within their jurisdiction the rights and freedoms set out in the Convention. This control is exercised by the Court, which gives judgments on individual applications brought under Article 34 of the Convention and on state applications – which are extremely rare (3) – brought under Article 33. The Court’s judgments are binding on respondent Parties and their execution is supervised by the Committee of Ministers of the Council of Europe.

12. The principle of subsidiarity underlies all the measures taken to increase the effectiveness of the Convention’s control system. Under Article 1 of the Convention, it is with the High Contracting Parties that the obligation lies “to secure to everyone within their jurisdiction the rights and freedoms” guaranteed by the Convention, whereas the role of the Court, under Article 19, is “to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention”. In other words, securing rights and freedoms is primarily the responsibility of the Parties; the Court’s role is subsidiary".

"14. Measures required to ensure the long-term effectiveness of the control system established by the Convention in the broad sense are not restricted to Protocol No. 14. Measures must also be taken to prevent violations at national level and improve domestic remedies, and also to enhance and expedite execution of the Court’s judgments.(4) Only a comprehensive set of interdependent measures tackling the problem from different angles will make it possible to overcome the Court’s present overload.

Measures to be taken at national level

15. In accordance with the principle of subsidiarity, the rights and freedoms enshrined in the Convention must be protected first and foremost at national level. Indeed this is where such protection is most effective. The responsibility of national authorities in this area must be reaffirmed and the capacity of national legal systems to prevent and redress violations must be reinforced. States have a duty to monitor the conformity of their legislation and administrative practice with the requirements of the Convention and the Court’s case-law. In order to achieve this, they may have the assistance of outside bodies. If fully applied, these measures will relieve the pressure on the Court in several ways: they should not only help to reduce the number of well-founded individual applications by ensuring that national laws are compatible with the Convention, or by making findings of violations or remedying them at national level, they will also alleviate the Court’s work in that well-reasoned judgments already given on cases at national level make adjudication by the Court easier. It goes without saying, however, that these effects will be felt only in the medium term.

Measures to be taken concerning execution of judgments

16. Execution of the Court’s judgments is an integral part of the Convention system. The measures that follow are designed to improve and accelerate the execution process. The Court’s authority and the system’s credibility both depend to a large extent on the effectiveness of this process. Rapid and adequate execution has, of course, an effect on the influx of new cases: the more rapidly general measures are taken by States Parties to execute judgments which point to a structural problem, the fewer repetitive applications there will be. In this regard, it would be desirable for states, over and above their obligations under Article 46, paragraph 1, of the Convention, to give retroactive effect to such measures and remedies. Several measures advocated in the above-mentioned recommendations and resolutions (see footnote 4) pursue this aim. In addition, it would be useful if the Court and, as regards the supervision of the execution of judgments, the Committee of Ministers, adopted a special procedure so as to give priority treatment to judgments that identify a structural problem capable of generating a significant number of repetitive applications, with a view to securing speedy execution of the judgment. The most important Convention amendment in the context of execution of judgments of the Court involves empowering the Committee of Ministers to bring infringement proceedings in the Court against any state which refuses to comply with a judgment.

17. The measures referred to in the previous paragraph are also designed to increase the effectiveness of the Convention system as a whole. While the supervision of the execution of judgments generally functions satisfactorily, the process needs to be improved to maintain the system’s effectiveness" (Link).

There is evidence that since 26 June 2002 Jack Straw, when Foreign Secretary, has been aware of the reform of the Convention system (Link). So, there is no legitimate excuse for Labour not doing anything when in power.

Recently, the Tories in the Coalition have been making a lot of noises about how they intend to spearhead reform of the ECtHR. As has been shown above this reform is not a Tory initiative at all. More to the point, the Tories idea of reform is all about trying to stop the Court finding the UK guilty of human rights violations. This fails to take responsibility for ensuring we get our human rights under the Convention, and providing for an effective remedy before a national authority.

Apart from the Tories being part of the problem rather than the cure, there is a failing of the Committee of Ministers itself in supervising execution of the Court's judgments. For example, it requires a vote by a two thirds majority to send a case back to the Court for a ruling that a Member State has failed to comply with a judgment of the Court. Given that the Committee of Ministers is made up of representatives from Member States, and given that many Member States have failed to comply with judgments of the Court this is an impediment to the effectiveness of the Convention system. The guilty are not pointing the finger at others who are equally guilty. In my view, it should be the individual applicants who should decide whether to send a case back to the Court for a ruling on non-compliance.

A Court judgment has the twin elements of providing individual measures for a breach of a Convention right, and general measures to prevent further abuses in future for others.

One of the factors to ensure democracy is a vigilant public. Civil Society must start to get involved in monitoring politicians to ensure that our human rights do not get abused, and if they do that we have an effective remedy at national level. Given politicians closeness to the mainstream media, this vigilance should extend to monitoring the media. Plans are afoot to try to curb the power of the internet to stop it being used to monitor the mainstream media and politicians. Civil Society must prevent these plans going ahead. Civil Society needs to engage more with the Council of Europe because it claims to represent 800 million Europeans. If it is not monitored effectively the result will just be more a case of the Council of Europe representing the interests of politicians and not Civil Society.