Memorandum submitted by the European Human
Rights Advocacy Centre
1. These submissions are put forward in
response to the letter from the Foreign Affairs Committee of 19
December 2003 inviting comments from the European Human Rights
Advocacy Centre on the Human Rights Annual Report 2003.
2. The submissions begin by outlining the
nature of the work carried out by the European Human Rights Advocacy
Centre. This is followed by submissions on two aspects of the
Human Rights Annual Report 2003:
(2) The proposed reforms of the European
Court of Human Rights.
THE EUROPEAN
HUMAN RIGHTS
ADVOCACY CENTRE
3. The European Human Rights Advocacy Centre
(EHRAC) was established at London Metropolitan University in 2003
to assist individuals, lawyers and non-governmental organisations
(NGOs) within the Russian Federation to take human rights cases
to the European Court of Human Rights. EHRAC is receiving funding,
initially for three years, from the European Commission, as a
grant under the European Initiative for Democracy and Human
Rights programme.
4. EHRAC works in partnership with the Moscow-based
NGO, Memorial, one of the leading Russian human rights
organisations, as well as other NGOs and lawyers throughout the
Russian Federation, including Chechnya. In Russia, the project
supports three lawyers and administrative support in Moscow and
five human rights liaison officers in the regions of Russia (including
Ingushetia/Chechnya). In the UK, EHRAC works in partnership with
the Human Rights Committee of the Bar of England and Wales, whose
barrister members provide pro bono drafting and advice
on individual cases.
5. In addition to human rights litigation,
EHRAC provides training on human rights law and procedure, publishes
and disseminates human rights training materials and establishes
human rights internships.
6. The London office of EHRAC is situated
within the Human Rights and Social Justice Research Institute
at London Metropolitan University, and draws on the expertise
of a wide range of human rights practitioners and academics in
the UK.
7. A substantial proportion of the European
Court litigation which EHRAC has assisted with, and/or conducted,
to date emanates from Chechnya. These cases concern gross human
rights violations, including fatalities and destruction of property
caused by aerial bombing, extra-judicial killing, enforced "disappearances"
and torture (including rape).
CHECHNYA
8. The extent of grave human rights violations
which continue to be perpetrated in Chechnya has been thoroughly
documented both by international institutions (such as the Secretary
General of the Council of Europe[13],
the Parliamentary Assembly of the Council of Europe[14],
the European Committee on the Prevention of Torture[15]
and the Commissioner for Human Rights[16]
and by respected national and international human rights organisations
(such as Memorial, the International Helsinki Federation for Human
Rights, Amnesty International[17],
and Human Rights Watch[18]).
9. We do not seek to replicate in these
submissions what has been extensively documented by these, and
other, organisations. We would, however, observe that in the light
of the continuing grave situation in the region, which arguably
has witnessed the most egregious human rights abuses perpetrated
during the first fifty years of the Council of Europe's existence,
the Annual Report could be open to criticism for failing
to give sufficient prominence to the region.
10. The influence of the international community
with respect to Chechnya has been limited by, amongst other things,
a failure to establish a presence in, or access to the region,
other than the Council of Europe whose experts have (until recently)
provided consultative assistance to the Office of the Russian
President's Special Representative in the Chechen Republic. However,
the mandate of the OSCE Assistance Group to Chechnya has not been
extended and the Parliamentary Assembly Special Rapporteur on
Chechnya has had successive requests to visit Chechnya rejected
by the Russian authorities.
11. Accordingly, in our view, further measures
should urgently be taken by the international community to ensure
that effective mechanisms are put in place for comprehensive human
rights monitoring and oversight in Chechnya by both regional and
international human rights institutions (including the Council
of Europe, OSCE and United Nations). A further, and vitally important,
aim should be to strengthen and supplement the mechanisms established
within the Russian Federation for investigation of alleged human
rights violations, and to encourage the provision of effective
remedies for victims of such violations. In view of the failure
to secure a resolution on Chechnya during the 2003 session of
the UN Commission on Human Rights, as noted in the Annual Report,
the UN Commission should be urged to pass a resolution at its
forthcoming sixtieth session this year in order to seek to achieve
such objectives.
PROPOSED REFORMS
OF THE
EUROPEAN COURT
OF HUMAN
RIGHTS
12. These submissions deal with two aspects
relating to the proposed reforms of the European Court: (i) the
proposed new admissibility criteria at the European Court, and
(ii) enhanced powers of the Council of Europe Commissioner for
Human Rights.
(i) The proposed new admissibility criteria
13. The Annual Report refers to the
current proposals for reform of the European Court of Human Rights
(at 3.3) and notes that "NGOs did not agree with recommendations
to introduce filter mechanisms that would reduce the number of
cases given full consideration by the Court". Together with
organisations such as Amnesty International, the AIRE Centre,
Interights and Liberty, EHRAC has been closely involved in the
"civil society" response to the proposed reforms of
the Court, both within the UK and at the Council of Europe, including
attending meetings of the Steering Committee for Human Rights,
the committee of Government experts tasked with putting forward
proposals for reform.
14. The proposal which is undoubtedly most
controversial would involve creating a new admissibility requirement
which would for the first time permit the Court a wide discretion
to reject cases at the admissibility stage. This proposal has
been actively supported by the UK Government. However, human rights
NGOs across Europe have lobbied forcefully against this proposal
as effectively denying, or substantially limiting, the right of
access to the Court. It has been the consistent position of the
NGOs that adding new admissibility criteria will not remedy the
two most important problems within the European Court system:
(1) how most effectively to filter out the
90% of cases which are currently declared inadmissible, and
(2) how to adjudicate on the ever-increasing
number of "repetitive violation" or "clone"
cases (such as the vast numbers of cases concerning the excessive
length of domestic proceedings, from various Council of Europe
states).
15. The proposed wording for the new criteria
for rejecting cases is vague and imprecise. The "Evaluation
Group" originally suggested that cases which do not raise
a "substantial issue" could be declared inadmissible
on that basis, but subsequently the Steering Committee for Human
Rights has proposed an assessment of whether the applicant has
suffered "a significant disadvantage". Most recently,
it has been suggested that a case could be rejected unless "respect
for human rights" requires its consideration on the merits.
16. The European Court judges are clearly
split on this fundamental question, as is acknowledged by the
Court's Position Paper adopted in September 2003:
". . . some judges are of the opinion that
any further restriction on the right of individual petition is
wrong in principle, whereas others consider that the only solution
to the caseload problem is to give the Court some discretion as
to which cases it examines in full"[19].
17. The UK Judge, Sir Nicolas Bratza, has
suggested that "it is their accessibility to the individual
applicant which has not only made the Convention organs unique
among international tribunals, but on which their reputation has
been founded. I would be strongly resistant to the imposition
of any artificial fetter on that right with a view to reducing
the flow of applications at their source"[20].
He acknowledges the "constitutional" role of the Court,
but refers to the "equally important function of providing
individual justice": "it is quite unreal in my view
to imagine that the number of judgments delivered by the Court
could be reduced to a level approaching that of national constitutional
courts". He argues for a better balance to be achieved between
cases of overall importance and those which involve the application
of well-established principles.
18. Sir Nicolas Bratza has also expressed
"the gravest reservations" about the proposal to exclude
cases of "minor or secondary" importance from detailed
treatment. He has argued that any attempt to define what is "substantial"
will be "fraught with difficulty"[21].
He questions:
"What is to be regarded as a case of `minor'
or `secondary' importance? Or, contrarily, what case is to be
seen as a `substantial' one? Who decides whether a case is worthy
of detailed treatment and how is such a decision practically to
be arrived at? And perhaps most importantly, what is to happen
to those well-founded complaints which are not adjudged worthy
of the Court's detailed attention?"[22].
19. Most fundamentally, Sir Nicolas Bratza
has argued that ". . . an amendment to the Convention designed
to reduce the influx of cases or to speed up their processing
by the Court, would treat the symptoms but not the underlying
disease, namely the continuing failure of national legal systems
effectively to implement the Convention guarantees and to provide
effective means of redress where breaches of the Convention rights
have been found to have occurred"[23].
(ii) The powers of the Council of Europe
Commissioner for Human Rights
20. As part of the proposed package of European
Court reforms, the Council of Europe Commissioner for Human Rights
has sought new powers: (a) to instigate cases before the Court
which raise serious issues of general importance and (b) to intervene
as a third party. It is understood that the UK Government is supportive
of proposal (b), but not proposal (a).
21. The Annual Report refers to the
European Court inter-state mechanism, which, if appropriately
utilised by Council of Europe member states, should be indicative
of states' collective responsibility for the credibility and efficiency
of the European Convention system. However, inter-state cases
are very rare indeed. For example, no state has sought to challenge
Russia over the extensively documented gross human rights violations
which have continued in Chechnya since 1999. It is envisaged that
the Commissioner for Human Rights could fill this gap, were he
given the power to instigate cases at the European Court (concerning
both systemic problems and gross human rights violations in areas
of conflict). The UK Government has expressed concerns that such
an additional power might prejudice the Commissioner's role in
advising or cajoling states "behind the scenes". However,
on the contrary, having such a power, if used selectively (as
is intended by the Commissioner), should enhance the Commissioner's
position.
22. For further information on the proposed
reforms of the Court, please see:
— NGOs' Response to the Report of
the Evaluation Group[24],
January 2002. [25]
— NGO Response to Proposals to Ensure
the Future effectiveness of the European Court of Human Rights,
28 May 2003. [26]
— P. Leach, Human Rights "Hotspots"
and the European Court, New Law Journal, 6 February 2004.
— P. Leach, Access to the European
Court of Human Rights—From a Legal Entitlement to a Lottery?,
forthcoming in Human Rights Law Journal.
— Amnesty International's Comments
on the Interim Activity Report: Guaranteeing the Long-Term Effectiveness
of the European Court of Human Rights, AI Index IOR 61/005/2004,
February 2004.
European Human Rights Advocacy Centre
5 February 2004
13 xSee, for example, Russian Federation: Council
of Europe's response to the situation in the Chechen Republic-Report
by the Secretary General on the presence of Council of Europe's
Experts in the Chechen Republic and overview of the situation
since June 2000, SG/Inf(2004)3, 16 January 2004. Back
14
Humanitarian situation of refugees and internally displaced persons
(IDPs) from Chechnya, Parliamentary Assembly Recommendation 1499(2001). Back
15
Public Statement concerning the Chechen Republic of the Russian
Federation, CPT/Inf(2003) 33, 10 July 2003. Back
16
Report by the Commissioner for Human Rights Mr Alvaro Gil-Robles
on his visit to the Russian Federation (Chechnya and Ingushetia)
10-16 February 2003, CommDH(2003)5, 4 March 2003. Back
17
See, for example, Rough Justice: The law and human rights in
the Russian Federation, Amnesty International, EUR46/054/2003,
2003; Amnesty International Report 2003, pp.207-210. Back
18
"Glad to be deceived": the international community
and Chechnya, Human Rights Watch World Report 2004. Back
19
Position Paper of the European Court of Human Rights on proposals
for reform of the European Convention on Human Rights and other
measures as set out in the report of the Steering Committee for
Human Rights of 4 April 2003 (CDDH(2003)006 final), European
Court of Human Rights, CDDH-GDR (2003)024, 26 September 2003,
para. Back
20
Sir Nicolas Bratza, The Future of the European Court of Human
Rights-Storm Clouds and Silver Linings, Thomas More Lecture,
October 2002. Back
21
Sir Nicolas Bratza, The Future of the European Court of Human
Rights-Storm Clouds and Silver Linings, Thomas More Lecture,
October 2002. Back
22
Ibid. Back
23
Sir Nicolas Bratza, The Future of the European Court of Human
Rights-Storm Clouds and Silver Linings, Thomas More Lecture,
October 2002. Back
24
Available at: http://www.cm.coe.int/T/E/NGO/public/Groupings/Human__rights/Documents/2002/200206agen.asp Back
25
The NGO Response was drafted by representatives of the
AIRE Centre, Amnesty International, European Human Rights Advocacy
Centre, Interights and Liberty. Back
26
Available at: http://www.fidh.org/communiq/2003/ue1305a.pdf. Back
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