Earlier this year I had the honour of representing the Bar of England and Wales at an online meeting with National Bar Associations, the event was organised by the European Court of Human Rights and the Council of Bars and Law Societies of Europe (CCBE), an international non-profit association founded in 1960.
At the event, I was representing the Bar as a rank-and-file practitioner. I have been working at the Court for the last 30 years and have represented applicants in at least 50 cases. I started as a volunteer in the early1990s with a Kurdish human rights project and in 2002 I founded the European Human Rights Advocacy Centre that has taken many cases against former Soviet Union countries.
The event was the first of its kind and will be an annual event in future. There had been a meeting with NGOs on the previous day and there were plans to also meet with Government representatives - all three of the Court’s main stakeholders are therefore involved in the initiative.
The Court is the most effective mechanism in the world for the protection of human rights. It is the Court of the Council of Europe (not to be confused with the younger EU), founded by Winston Churchill and other Western European politicians on 5 May 1949.
The Council includes 47 member states stretching from Iceland to the Bering Straits. It covers a population of approximately 820 million and operates with an annual budget of around 500 million euros.
The Court has 47 full-time judges elected by the Parliamentary Assembly of the Council (PACE) and from lists submitted by member states. They are accompanied by 600 registry staff drawn from all member states in proportion to their populations.
The Court’s President, Judge Robert Spanó, gave words of welcome and the Court’s Registrar, Marialena Tsirli, updated the audience on the Interlaken Process, an extensive reform project first initiated in 2010. The Process was the Court’s response to the tsunami of applications it had received during the 20 years since the collapse of the former USSR and the accession of several of its constituent republics. The Process was concluded last year and has prevented the Court from being completely engulfed.
One of its last proposals will be effective from 1 February 2022 as a result of which Protocol No. 15 will reduce the time limit available, from 6 to 4 months, for lodging an application with the Court after exhausting domestic remedies.
The success of Interlaken is clear - there had been 160,000 pending cases at the Court in 2011 and now there are 68,450 pending cases: 22.4% are from Russia, but as per head of population Russia is by no means the top supplier of cases to the Court. Out of the total number of cases, 21.8% are from Turkey and 16.4% are from Ukraine. Next are Romania and Italy. Overall, 75% of the Court’s cases come from just six countries and in 2021 only 5% of cases ended in judgments.
After weeding out hopeless and incompetent applications, about 10% or less of the complaints are communicated to the Government concerned. The Court has also introduced a process of triage and a series of priority categories including Category IV High for important cases. In terms of timescale, a case can last from five years up to 14. My client Marina Carter recently won her case after 14 years.
England and Wales were particularly well represented at the inaugural event. The English Barrister Piers Gardner of Monkton Chambers, and Chair of the CCBE’s Permanent Delegation to the Court, expressed concern about the non-judicial oversight of the triage system organised by the Registry. He also highlighted that the new Category IV High will only affect 800 out of 6,000 Category IV cases. Lastly, he suggested that a unilateral declaration by the Government should become an enforceable debt. In response to Piers, the Registrar stated that the Registry receives at least 1,000 applications a week and there is always a judicial eye on the triage process and the judge may intervene.
The Registrar also emphasised the need for a filtering, triage system by highlighting examples, types and volumes of cases. In the case of Zambrano v France about compulsory covid vaccinations, there had been calls to “paralyse” the Court by submitting 18,000 replica applications generated automatically using an online form based on the applicants’ submission. There has also been a steep rise in interstate applications, where one or more CoE member states make an application against another state, and this now amounts to 16% of pending applications. In addition, coalitions of NGOs are bringing a case against 33 member states about climate change and there are 17,800 cases in Category IV, which may take up to six years to be decided.
The Copenhagen Declaration in 2018 established a new case processing system with seven priority categories and since 2019 there has been a more structured approach to deal with cases. The Deputy Registrar, Abel Campos, focused on non-contentious cases and said: “A bad settlement is better than a good trial”. He explained the court has introduced a non-contentious procedure (NCP) which enables the parties to reach a friendly settlement more quickly: 70% of NCP cases are proposals for friendly settlements, and 5.8% of these are “unilateral decisions” in which the Registry proposes sums of compensation that are based on 60 years of case-law.
The second (of three) topics covered at the event was “Improving the Court’s working methods and communication with applicants and their representatives: operation of Rule 47, correspondence” and the session was moderated by Judge Tim Eicke, who is the current judge elected in respect of the UK at the Court, he is a dual British and German citizen, born and educated in Germany, with a prior illustrious practice at Essex Court Chambers and was elected by PACE in 2016.
The Law Society Human Rights Committee Chair, Sue Willman, was one of the attendees at the event and was representing the solicitors’ profession.
Bill Bowring, Barrister at Field Court Chambers, Gray’s Inn and Professor of Law at Birkbeck College, University of London.