[ALBSA-Info] On the European Court of Human Rights

[Agron Alibali]

>
>A New Round in the Struggle for the Rule of Law
>
>
>New European Court of Human Rights Opens
>
>Andrea Spalinger
>The first president of the new Court is Luzius Wildhaber, a Swiss.
>
>On 3 November, the new, permanent European Court of Human Rights 
>opened in Strasbourg. Among the massive challenges facing the new 
>tribunal are a constantly growing flood of complaints, a vast 
>backlog of cases, and buttressing the rule of law in the newer 
>signatory members of the 1950 European Convention on Human Rights. 
>But the Swiss president of the Court, Luzius Wildhaber, is 
>optimistic.
>In keeping with the 11th Appendix Protocol to the European 
>Convention on Human Rights (ECHR), the Council of Europe's reformed 
>European Court of Human Rights (not to be confused with the EU's 
>European Court of Justice) began operations on 3 November in 
>Strasbourg, replacing earlier ECHR bodies. The most important 
>improvement over the old monitoring system is that the new Court 
>will operate as a permanent institution. Its full-time magistrates - 
>one each from every signatory nation to the Convention - will 
>monitor whether member states are fulfilling the obligations they 
>assumed in ratifying the ECHR. The original document and its 
>subsequent protocols oblige member states to protect such 
>fundamentals as the right to life, a ban on torture, the right to a 
>fair trial and a ban on discrimination. Operating under the aegis of 
>the Council of Europe, the Court is thus far the sole international 
>institution with which individuals may directly register a complaint 
>against a government. The first president of the new Court is Luzius 
>Wildhaber, a Swiss.
>
>Greater Speed and Transparency
>
>Under the former system, the European Commission on Human Rights 
>initially checked each complaint to determine whether the Convention 
>had been violated. The old Court could become active only when the 
>Commission or a signatory state presented it with a legal issue. 
>Moreover, the Council of Europe's Ministerial Committee, as a 
>political supervisory organ, often had a dampening effect on 
>decisions concerning human rights complaints.
>The old system was cumbersome and time consuming. With the reform, 
>the Ministerial Committee will merely monitor the implementation of 
>verdicts. Complaints will now be lodged directly with the Court, 
>doing away with the former two-stage procedure. The new tribunal 
>will reach its decisions by considering obvious violations in 
>three-judge panels and all other cases in seven-judge panels, except 
>when cases raise serious questions of interpretation of the ECHR; 
>those will be considered by a Great Chamber of 17 magistrates. 
>Plaintiffs and governments may file appeals to the Great Chamber 
>against a verdict within three months.
>Reform of the ECHR monitoring system goes back to a Swiss 
>initiative. In 1985, in a report to a ministerial conference held in 
>Vienna, the Swiss Federal Council proposed that the Human Rights 
>Commission and its Court be combined into a single organ, a European 
>Court of Basic Rights. During its chairmanship of the Ministerial 
>Committee in 1991-92, Switzerland pushed hard to move the 
>far-reaching reform forward. Finally, the 11th Appendix to the ECHR 
>was signed in May 1994 and, by the beginning of 1998, had been 
>ratified by all 40 signatory states. The reform is generally 
>considered a great step forward, making procedures more transparent 
>and simpler, and significantly shortening the time needed for 
>consideration of a case.
>There are, however, a few weak points in the new procedure as well. 
>It seems problematic that the Great Chamber cannot decide for itself 
>which cases it will consider. Article 30, coupled with Article 43 of 
>the ECHR, states that cases of major consequence can only be treated 
>by the Great Chamber if none of the parties of the dispute objects. 
>This is a serious limitation on the Court's sovereignty. Another 
>handicap is that the clauses dealing with interim orders by national 
>courts regarding the expulsion or repatriation of unacceptable 
>asylum seekers are vaguely formulated.
>
>A Rising Flood of Complaints
>
>Aside from complexity and lack of transparency, one of the old 
>system's main problems was the duration of its proceedings. The 
>Strasbourg bodies were overloaded from the outset, and were on the 
>verge of drowning in a constantly rising flood of complaints. For 
>the roughly 5% of them that were considered suitable for the old 
>Court's attention, an average case dragged on for six years, while 
>the signatories kept demanding that cases be dispatched at a 
>speedier tempo.
>In recent years, the number of complaints has been steadily rising. 
>In 1985, a total of 2,800 complaints were filed; by 1997 the figure 
>had risen to 12,500. This is partly due to the improved availability 
>of information and also to the Council of Europe's expanded 
>membership. Initially, the monitoring system was conceived for a 
>group of 10-12 member states; by now, citizens from 40 signatory 
>countries are entitled to file complaints - including some 150 
>million Russians (since May 1998). New members include nations such 
>as Albania, Ukraine and Russia, where democracy and the rule of law 
>are underdeveloped or still shaky. So far, the number of complaints 
>filed from the new signatory states of Eastern and Central Europe is 
>still modest. But it is growing, and it may be assumed that in 
>future a steadily increasing number of citizens from those countries 
>will invoke their rights.
>Many observers are already concerned about whether the Court, 
>despite its revised procedures, will be able to handle the influx of 
>new complaints. In addition, the backlog taken over from the old 
>Court must be worked through as soon as possible. At present, more 
>than 6,500 registered complaints are pending; 87 cases have been 
>approved for consideration and are awaiting a verdict. Nevertheless, 
>Court President Wildhaber is confident that the pending cases will 
>be dealt with by February of next year - assuming that the 
>governments involved prove cooperative. The efficiency of the new 
>tribunal, says Justice Wildhaber, will depend mainly on the 
>development of the caseload. If it remains more or less constant, it 
>should be possible to get through future proceedings in no more than 
>two years. But Wildhaber, too, anticipates that the number of 
>complaints will continue to grow, in which case new steps will 
>probably have to be taken at some point, such as increasing the 
>Court's personnel or creating a new court of first instance.
>
>Challenges for New Members
>
>The new Court's 40 judges were elected by the Council of Europe's 
>Parliamentary Assembly. Three candidates, chosen by their respective 
>governments, were put forward by each member state. Those elected 
>will now have to prove their independence. There is a danger that, 
>as they operate in Strasbourg, the new magistrates could feel 
>themselves more committed to their own countries than to the Human 
>Rights Convention, which would make a genuinely independent 
>administration of justice impossible. But Court President Wildhaber 
>is optimistic about this too. Once a magistrate has been elected, he 
>maintains, he will base his decisions on his conscience and his best 
>knowledge; at the old Court, judges often voted against their own 
>countries. The independence of the elected magistrates is less of a 
>problem, he says, than the fact that their nomination was 
>politically motivated in some countries. But, he points out, there 
>is nothing that Strasbourg can do about that.




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