Europe of Human Rights

The growing number of complaints lodged every year with the European Court of Human Rights (the Court) and the growing backlog (152,000 cases pending as of May 2011) has led to the realization that a reform of the system is necessary.

Even before it was adopted by all member states, it was clear that Protocol 14 to the European Convention for Human Rights (ECHR), reforming the functioning of the Court (e.g., introducing a single judge formation, introducing new admissibility criteria), was insufficient. Therefore, a Declaration and Action Plan was adopted on 19 February 2010 at the Interlaken High-Level Conference in order to supplement and continue reforms.

Since then, reform work has continued. However, the trend of reforms and the proposals discussed have been moving in a direction that could affect an applicant’s ability to access the complaint system.

The most recent proposals for reform were made at the 26 and 27 April 2011 High Level Conference meeting, which took place at Izmir on the initiative of the Turkish Chairmanship of the Committee of Ministers of the Council of Europe. Proposals on the table included introducing fees for applicants, sanctions for filing ill-founded applications, creating a Statute for the Court (incorporating the actual Rules of the Court), introducing new admissibility criteria, creating a filtering body composed of junior judges, and granting the opportunity to present “Advisory Opinions” (giving the Court jurisdiction on requests from the highest courts of the member states), among other suggestions. During the Izmir conference, Governments also discussed the mandate of requiring applicants to the Court to be represented by lawyers.

The introduction of court fees and mandatory representation by a lawyer, combined with the possibility of sanctions if complaints are ill-founded, would deter many applicants from filing applications. Though the aim of the regulations is to limit the number of inadmissible applications, introducing such a system will also deter well-founded applications lodged by the poorest and most marginalized members of the population, including prisoners and detainees. Financial costs and mandatory legal representation would discourage a large number of such applicants.

The introduction of a costs waiver would not be efficient in Polish cases, as the interior system of waiver poses enormous problems and the experience of getting through the domestic field would certainly have a psychological impact on applicants. The possibility of the Strasbourg Registry of the Court adequately assessing an applicant’s financial capacity also seems illusory. Most applicants would, on the other hand, be unwilling to allow domestic authorities to verify their financial situations. The system would also require a diversification of fees dependent upon the applicant’s country of origin; fees would need to be calculated and assessed to account for variations in the cost of living, and currency exchange rates would need to be considered and qualified. Such a proposal, however, introduces unclear diversification, not to mention barriers arising due to a lack of a common currency and high transactional costs.

If no effective legal aid system could be introduced, making legal representation mandatory could mean that the right to lodge a complaint with the Court would become illusory. It should be noted that at the national level, especially in Poland, access to free legal aid is not always granted. Many vulnerable groups (e.g., prisoners) might therefore face an impassable barrier.

Additionally, further proceedings related to Court fees and legal representation would prolong the overall proceedings before the Court, which are already lengthy, as an applicant can wait several years for resolution in his case.

The proposals of the reforming bodies may have a “chilling effect” on the applicants and prevent them from lodging complaints. This, in turn, will hinder the power and success of the Court system, which relies on the broad accessibility to file complaints and which, over the years, has enabled the lodging of complaints even from vulnerable groups and people in distress (e.g., Russian prisoners whose complaints were introduced on toilet paper, those individuals lacking access to any basic means) – the very individuals the ECHR is intended to protect.

Dominika Bychawska-Siniarska

 

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