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Harris, O'Boyle, and Warbrick: Law of the European Convention on Human Rights

Harris, O'Boyle, and Warbrick: Law of the European Convention on Human Rights (5th edn)

David Harris, Michael O'Boyle, Ed Bates, and Carla M. Buckley
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date: 21 June 2024

p. 1083. The European Court of Human Rights: Organization, Practice, and Procedurefree

p. 1083. The European Court of Human Rights: Organization, Practice, and Procedurefree

  • David Harris, David HarrisEmeritus Professor in Residence, and Co-Director, Human Rights Law Centre, University of Nottingham
  • Michael O’boyle, Michael O’boyleDeputy Registrar of the European Court of Human Rights (2006–2015)
  • Ed Bates, Ed BatesAssociate Professor, School of Law, University of Leicester
  • Carla M. Buckley, Carla M. BuckleyInternational Human Rights Lawyer
  • KreŠimir Kamber, KreŠimir KamberRegistry Lawyer, European Court of Human Rights
  • ZoË Bryanston-Cross, ZoË Bryanston-CrossRegistry Lawyer, European Court of Human Rights
  • Peter CumperPeter CumperProfessor of Law, University of Leicester
  •  and Heather GreenHeather GreenIndependent Researcher

Abstract

This chapter discusses the organization and functions of the European Court of Human Rights. Topics covered include the composition of the Court; the election of judges; the roles of the Court Chambers and the Grand Chamber; pilot judgments; reform of the Court; and the future of the Court.

1. The Organization of the Court

I. The Setting Up of the New Court

The European Court of Human Rights (ECtHR) is a unique body in the history of international law. More than 800 million people1 have direct access to the Court to complain of violations of their fundamental rights. The Court has established standards which permeate the legal order of the Convention contracting parties and has made a major contribution to the shaping of domestic law and practice in almost every area of law—the administration of criminal justice, civil and criminal law, family law, and the law of property, to name but a few. This is a notable achievement for an international tribunal that was set up in 1959 with the role of providing an early warning system against the decline of democratic standards and the growth of dictatorships. This essentially political mandate was to be achieved through the operation of law, in particular through the exercise of the right of individual petition.2

The present permanent Court, which started its work on 1 November 1998 on the entry into force of Protocol 11, is the product of the fusion of two separate, part-time enforcement bodies, the now defunct European Commission of Human Rights and the former European Court of Human Rights.3 Under Protocol 11, the existing Commission and Court were replaced by a single, full-time institution composed of one judge in respect of each contracting party to the Convention. Judges would be permanently based in Strasbourg and would not be permitted to engage in any activity incompatible with the demands of a full-time office. The present Court’s role goes far beyond that of ruling on the substantive issues raised by a case. It is an all-purpose Court, which has inherited p. 109from the Commission the essential tasks of filtering applications, fact-finding, determining admissibility, and negotiating friendly settlement, in addition to providing binding rulings in admissible cases.4

The constant growth in the number of cases being brought to the Court since 1998 has required it to change its working methods continuously in order to find ways of rejecting obviously inadmissible cases with an economy of procedure.5 It was soon realized that Protocol 11 was not sufficient and that further structural change was needed (the reform of the reform) to enable the Court to operate effectively. This led to the drafting of Protocol 14, which was opened for signature on 13 May 2004 and took more than six years to come into effect, due to Russia’s reluctance to ratify the Protocol.6 It was also recognized that the continuous growth of cases by 12 per cent every year was steadily asphyxiating the Court and undermining its authority.7 In 2005, the Committee of Ministers set up a group of Wise Persons to examine the future of the Court and to set out a blueprint for its future long-term development. The Group reported in November 2006 and made a number of p. 110far-reaching proposals.8 However, it was clear that the Group’s thinking was predicated on the assumption that the changes brought about by Protocol 14 would be in place soon and that the future discussion on their proposals would be enriched by information as to the operation of the changes brought about by that Protocol. The process of reform had thus stalled, pending a final decision by Russia as to whether it would ratify the Protocol. The Protocol finally came into force in 2010. Five reform conferences were held over the next eight years—in Interlaken (2010), in Izmir (2011), in Brighton (2012), in Brussels (2015), and in Copenhagen (2018)—leading to agreement on a blueprint for the Court’s development over the next decade.9

II. Composition of the Court

Section II of the Convention governs the operation of the Court and its procedures.10 Article 20 provides that the number of judges shall equal the number of contracting parties; currently, therefore, with the exit of Russia from the Convention system, there are 46 judges.11 The judges are elected to a single, non-renewable term of nine years.12 Judges’ terms of office expire when they reach 70 years of age.13 However, when read with the provision in Article 23(3) (‘judges shall hold office until replaced’), a certain ambiguity appeared. The practice was that judges over the age of 70 continued to sit until replaced.14 Protocol 15, however, replaced the age limit with a requirement that candidates should be less than 65 years of age at the date by which the list of three candidates has been requested by the Parliamentary Assembly, thus effectively increasing the age limit to 74.15

The criteria for office are set out in Article 21 of the Convention, which specifies that judges shall be of ‘high moral character’ and must possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence. The latter term, taken to mean ‘experts in law’, considerably expands the pool of eligible candidates. The result is a Strasbourg judiciary of diverse professional backgrounds: the current Court includes former supreme and constitutional court judges, academics, prosecutors, and those recruited from the practising bar in contracting parties.16

In keeping with the nature of any full-time court, Article 21(3) requires that judges shall not engage in activity which is incompatible with their independence or impartiality or the demands of a full-time office. Rule 4 of the Rules of Court supplements this by making it clear that they shall not engage in any political or administrative activity which is incompatible with their independence or impartiality. Judges are expected to work full p. 111time in Strasbourg. All new judges are informed of this by the President of the Court and it is further reinforced both by the oath they swear upon taking up office17 and the election procedures of the Parliamentary Assembly of the Council of Europe (PACE) considered in section 1.III, pp 112–113. Rule 4 also provides that judges must declare any additional activity to the President and that in the event of a disagreement between the President and the judge concerned, any question arising shall be decided by the plenary Court. The Court has also recently adopted the Resolution on Judicial Ethics which serves as a guidance to judges in this context.18

Article 51 of the Convention entitles judges to privileges and immunities in the exercise of their functions, thus reinforcing the independence of the Court. These are today governed by the 1996 Sixth Protocol to the General Agreement on Privileges and Immunities of the Council of Europe,19 ratified by all of the contracting parties. The Protocol applies to both permanent and ad hoc judges.20 This entitles judges, as well as their spouses and minor children,21 to the privileges and immunities accorded to diplomatic envoys, and guarantees judges’ immunity from legal process in respect of words or acts done in the discharge of their duties.22 The immunity accorded to judges is not only functional but also personal: it exists irrespective of whether the act in question is related to the exercise of the judicial function or not. The immunity continues in respect of such words or acts even when they are no longer involved in the discharge of such duties.23 It also guarantees the inviolability of their papers and correspondence as well as that of the Court and the Registry ‘in so far as they relate to the business of the Court’.24 By Article 4 of the Protocol, privileges and immunities are accorded to judges ‘not for the personal benefit of the individuals themselves but in order to safeguard the independent exercise of their functions’. Immunity can only be waived by the plenary Court. According to Article 4 it ‘is under a duty to waive the immunity of a judge in any case where, in its opinion, the immunity would impede the course of justice, and where it can be waived without prejudice to the purpose for which the immunity is accorded’.25

The President of the Court is assisted by two Vice-Presidents, who are also Presidents of Sections, all of whom are elected by the plenary Court for a period of three years. Three p. 112further Section Presidents and five Section Vice-Presidents are elected for a period of two years; the former by the plenary Court and the latter by each of the sections concerned. The term in office of Presidents and five Section Vice-Presidents may be renewed only once to the same level of office.26 However, it is normally not the case that the same judge would be re-elected twice to the same position. The Convention itself is silent on many of the duties now assumed by the President, save for stating that they (with the Vice-Presidents and Presidents of the Chambers) will automatically be a member of the Grand Chamber.

Rule 9 of the Rules of Court elucidates the President’s role in greater detail.27 The first paragraph specifies that the President shall direct the work and administration of the Court and represent it, with particular responsibility for its relations with the authorities of the Council of Europe. They also have power to issue practice directions (Article 32).28 These are wide-ranging duties and will involve managing the Court’s relationship with its Registry, establishing and maintaining relations with national courts and governments (including protocol matters such as receiving delegations and visiting dignitaries to the Court), and relations with the Committee of Ministers and the Secretariat of the Council of Europe, encompassing, most importantly, budgetary matters.29 The proper relationship between the Court and other parts of the Council of Europe can be a difficult one, not least because the President must ensure that the Court is fully independent in judicial matters whilst also accepting that, at least administratively, the Court and its Registry are an autonomous part of the wider Council of Europe system. For the judicial functions of the President, Rule 9(2) makes explicit what the Convention assumes: they will preside at plenary meetings of the Court, meetings of the Grand Chamber, and meetings of the panel of five judges which considers requests for referral to the Grand Chamber.

III. The Election of Judges

Article 22 entrusts election of judges to PACE from a list of three candidates nominated by the contracting party.30 The lists submitted by contracting parties have at times proved controversial and PACE has rejected them on various occasions.31 The contracting parties have stressed the importance attached to the independence, impartiality, and quality of p. 113the judges in the Interlaken, Izmir, Brighton, Brussels, and Copenhagen Declarations and in the Oslo proceedings. The need to encourage applications by good candidates has also been often stressed.32 It is crucial to the fulfilment of the Court’s mission that candidates should be put forward by states for their juridical competence alone. Unfortunately, there are well-documented instances where unsuitable candidates have been put forward.33

To ensure highly qualified candidates, the Committee of Ministers set up an Advisory Panel in 2010 composed of seven judges of the highest courts (including former judges of international courts) to advise the contracting parties on whether candidates satisfy the criteria set out in Article 21, as a specialized pre-examination to that carried out by the sub-committee on the election of judges of the Assembly. They scrutinize the lists and inform the contracting parties, on a confidential basis, whether there are any shortcomings, although it has no power to hear the candidates. They will also submit their views to PACE, again on a confidential basis.34 The central idea of the Panel is that its members will be able to avail themselves of their judicial experience and wide contacts to make an informed assessment of the quality of the candidates on the list. The Panel’s role is to ensure that only competent and qualified candidates are placed on the list to be assessed by PACE. The scheme will only work if the contracting parties and PACE comply with the observations made by the Panel. In several cases, the contracting party has forwarded their lists to the Assembly without waiting for the Panel’s view, and the elections took place without PACE having obtained the views of the Panel on the candidates concerned.35 However, in 2019 PACE amended its procedures by providing that it would not consider a list of candidates if the Panel was not duly consulted. Moreover, the new procedure envisages that the Chairperson or a representative of the Panel would be invited by the PACE Committee on the Election of Judges to explain the reasons for the Panel’s views on candidates.36 There are signs that the system has indeed made a difference to the quality of candidates being put forward for election. In recent years, the views of the Panel are increasingly being taken into account by the PACE Committee on the Election of Judges.37 However, there is a certain institutional friction with the PACE sub-committee responsible for interviewing the candidates and making proposals to the Assembly. This body has made it clear that the role of the Panel is to vet the lists before they are submitted to the Assembly and that it is the Assembly that has the sole responsibility for the election of the judges thereafter. The question is whether the Panel must be given more teeth in its operation vis-à-vis PACE. It is noted, for instance, that the 2019 amendments to the PACE procedures did not formalize the requirement that the state should not put forward a name on the list which the Panel found not to be suitable for the judicial post in the Court. However, the Committee of Ministers has called upon the member states not to put forward such lists where the Panel has expressed a negative opinion.38 One commentator has suggested, inter alia, that p. 114the Panel should forward its proposals to all governments; that the proposals of the sub-committee on its choice after interviewing the candidates be accessible to the press and made public; and that the interviews with the sub-committee should not take place if governments omit to consult the Panel.39

The procedure in PACE for the election of judges has evolved over the years.40 In 2015, the general Committee on the Election of Judges of the Court (AS/Cdh) was created.41 The Committee consists of 20 full members and 20 alternates appointed by the PACE Bureau, who should possess the necessary level of competence and experience in the legal field.42 The Committee scrutinizes the candidates’ CVs and interviews them, following which it takes vote by a secret ballot. All proceedings before the Committee are confidential. The Committee produces a report on its proceedings and addresses recommendations to the Assembly’s plenary. The report of the Committee is made public prior to the election procedure in the plenary session. The election in the plenary is by secret ballot. In the first round of voting, an absolute majority of votes cast is needed and, if that cannot be achieved, in the second round a relative majority of votes is sufficient.43

While the election is a matter for PACE, it is not clear what, if any, conditions it may actually impose on candidates. Pursuant to its Resolution 1366 (2004), subsequently modified by Resolutions 1426 (2005), 1627 (2008), 1841 (2011), and 2248 (2018), the Parliamentary Assembly established a practice according to which it would not vote on a list until it was satisfied that certain conditions were met, such as all three nominees being qualified to serve as judges, demonstrating sufficient independence from the nominating state, being capable of working in at least one of the Court’s official languages, being willing to take up permanent residence in Strasbourg, and, in the interests of the gender balance of the Court, that the list contained at least one man and one woman. However, single-sex lists of candidates may be considered when the sex is underrepresented (under 40 per cent of judges) or in ‘exceptional circumstances’.44 Moreover, as noted earlier, the Panel must be consulted. Lists which have not met these criteria have been regularly rejected, as have lists which are not considered to offer the Assembly a real choice because of wide disparities p. 115in the qualifications and experience of the candidates. However, in such circumstances, the contracting party retains the right to nominate candidates. Therefore, if a state were to insist on submitting the same list that has previously been unfavourably reviewed by the Advisory Panel or rejected by the Parliamentary Assembly, there would be an impasse.

Such a stand-off occurred, for instance, in relation to the Maltese list, which was rejected by the Parliamentary Assembly because there were no female candidates on it. In the ensuing impasse, Malta prevailed upon the Committee of Ministers to ask the Court for an advisory opinion on two questions: first, whether a list which satisfied the criteria listed in Article 21 (described earlier in this section) could be rejected on gender grounds; and, second, whether the relevant resolutions of the Parliamentary Assembly adopting the requirement of both genders being represented on a list were in breach of the Assembly’s responsibilities under Article 22. The Court in its Advisory Opinion of 12 February 200845 found it unnecessary to answer the second question and answered the first by stating that, while there was no implicit link between the criteria laid down in Article 21 and mixed-sex lists, a gender equality policy could, in principle, constitute grounds for rejection of a list by the Assembly. However, there were boundaries that the Assembly could not overstep in its pursuit of that policy. In particular, it should not have the effect of making it more difficult for contracting parties to put forward candidates who satisfied all the requirements of Article 21. Accordingly, provision had to be made for some exceptions to enable states to choose national candidates who satisfied the requirements of Article 21, especially for states where the legal profession was small. The practice of the Parliamentary Assembly in not allowing such exceptions was thus considered incompatible with the Convention.46

Another issue that has given rise to controversy arose in 2007, when Ukraine sought to withdraw its list on the grounds that there had been irregularities in the selection process in respect of one member. The Assembly requested Ukraine to replace the member, but not to submit a new list, as there were no ‘exceptional circumstances’ under its rules that would justify this.47 The issue was important because it concerned the fate of the list against the background of changing local politics.

The Court was asked for an advisory opinion. It ruled that the states were authorized to withdraw a list, but only within certain limits. That limit was the deadline set by the Assembly for the submission of the list. Once that time had passed, it would no longer be open to the state to withdraw its list. Any later possibility of withdrawal was considered to hinder the normal course and timing of the procedure for the election. Where the states withdrew their list before the expiry of this time limit, it was open to them to submit a new list, which would have to be considered by the Assembly.48

The Assembly has also made efforts to reform the way in which states select their lists of candidates. For example, its Resolution 1646 (2009) requires states to issue public and open calls for candidatures, to describe how candidates are selected, to put forward candidates with knowledge of the official languages, to consult, and to submit the lists in alphabetical order so as not to betray preferences for candidates. These efforts have had mixed success.49

IV.p. 116 Ineligibility to Sit and Withdrawal

As noted in section 1.II, Article 21(3) states that the judges shall not engage in any activity which is incompatible with their independence, impartiality, or with the demands of a full-time office. Occasionally, judges have had to withdraw from hearing individual cases because of inevitable conflicts of interest, most commonly when the judge, who may previously have held high judicial office in their home state, has already heard a case at the national level or been involved in a case as an advocate. Judges who have previously been agents of their government or ambassadors involved, even remotely, in dealing with cases before the Court will not be able to hear cases which were communicated to the government when they acted in these capacities. Rule 28(2) sets out situations where the judge may not take part in the consideration of any case, including having a personal interest in the case or where the judge has expressed opinions publicly concerning the case that ‘are objectively capable of adversely affecting his or her impartiality’. The mere fact that a judge has written an academic article concerning the interpretation of a provision of the Convention and has expressed a general opinion on the case law, unrelated to the facts of the case being considered, would not normally disqualify them from sitting. However, any activity by the judge, including the opinion expressed, related to the case under consideration could raise an issue of their ineligibility to sit in that case. But, as with any court, difficult questions of judgement can arise in this context. In recent years, the Court indicates in its judgments only brief information on the impossibility of a judge to sit in the case, without providing any reasons or further explanations in that respect.50 Normally, the judges concerned will simply notify the President of the Section or the Grand Chamber, as the case may be, that they cannot sit, and Rule 28(1) places the burden on the judges to notify the President if they are prevented from sitting. If there is any doubt on the part of the judge or the President as to the existence of any grounds for ineligibility to sit, then, by Rule 28(4), the issue is decided by the Chamber (or, as appropriate, the Grand Chamber) without the presence of the judge concerned but after the judge has had an opportunity to express their views on the matter.51 The ineligibility of a judge to take part in the decision-making of the Grand Chamber Panel is provided for in Rule 24(5)(b) and (c) of the Rules of Court.52

V. Ad Hoc and Common Interest Judges

In the event that a judge withdraws from a case, if it is not a case in which they are the national judge, then their place will simply be taken by one of the substitute judges in the Chamber or Grand Chamber. If they are the national judge, then this necessitates the appointment of another judge, since Article 28 requires the presence of the national judge. In accordance with an arrangement that was initially introduced to facilitate the Court’s work and accepted by the government agents, the President invited the respondent government to decide whether to appoint another elected judge to sit in the case or an ad hoc judge.53 Where the Chamber seeks to reject a case de limine without communicating it to the government for observations, the Chamber will not ask for an ad hoc judge to be appointed. The same applies to various procedural decisions which are not determinative of the outcome of the case.

p. 117Protocol 14 has altered the rules concerning the nomination of ad hoc judges.54 Each contracting party is required to draw up a reserve list of ad hoc judges from which the President of the Court will choose when the need arises to make an appointment. The Explanatory Report to the Protocol explains that the reform was a response to criticism of the former system, which allowed a contracting state to choose an ad hoc judge after the beginning of proceedings. The Convention provides in Article 27(2) that, for Chambers and Grand Chambers, the judge elected in respect of the state party concerned shall sit ex officio and, if there is none or they are unable to sit, a person of its choice shall sit in the capacity of judge. This is fleshed out by Rule 29 of the Rules of Court, which provides that the list of ad hoc judges submitted to the President shall contain the names of persons of both sexes and be valid for a renewable period of two years. The judges must satisfy the qualifications set out for judges in Article 21(1) of the Convention and they must also meet the demands of availability and attendance. If no list is provided or if less than three persons satisfy the conditions for appointment, the President may appoint one of the sitting judges.55 For the duration of their appointment, an ad hoc judge is not permitted to represent any party or third party in proceedings before the Court in order to avoid a situation where an ad hoc judge is both judge and advocate at the same time. It is open to the President to appoint another elected judge to sit as the ad hoc judge where they find, inter alia, that the state has not supplied a list or where the judges on the list do not satisfy the qualifications indicated earlier.56

Neither the Convention nor the Rules of Court provide for the possibility of challenging a judge or ad hoc judge, although it is open to an applicant, a contracting party, or a third-party intervener to request a judge’s withdrawal to the President of the Chamber, setting out the reasons for any objection. It would then be a matter for the President to decide after having consulted the Chamber. Moreover, since the Rules do not provide for any consultation of the applicant before the appointment of an ad hoc judge, no right of veto can be inferred and thus the matter is wholly at the discretion of the Chamber.57

Finally, when two or more applicant or respondent contracting states have a common interest in a particular case (eg when the application is brought against more than one contracting state), it is possible for the states to nominate a common interest judge. However, under Rule 30(1) the President of the Chamber (or the Grand Chamber) retains a discretion to decide whether the appointment of a common interest judge is needed or not. A common interest judge was appointed, for example, in the case of Behrami and Saramati v France and Others,58 concerning the actions of the United Nations Mission in Kosovo (UNMIK), where the three respondent governments agreed to the appointment of Judge Costa, the judge elected in respect of France and then President of the Court, as common interest judge.

VI.p. 118 Court’s Formations: Plenary, Single Judges, Committees, Sections, Grand Chamber

The administrative and judicial work of the Court takes place in a number of formations. For administrative work, the most significant decisions are taken by the plenary Court, composed of all of the Court judges. Article 26 provides that it is the plenary Court that elects the President and Vice-Presidents of the Court as well as the Presidents of the Chambers.59 It also sets up the Chambers, adopts the rules of court, and elects the Court’s Registrar and Deputy Registrar. Following the cessation of Russia’s membership of the Council of Europe, the plenary Court also examined the consequences of that situation from the Convention perspective and in that respect adopted a Resolution.60 This was a pragmatic solution not specifically provided in the Convention or the Rules of Court. Apart from elections, the plenary votes by a show of hands.61

For judicial work, the Court is divided into Sections, currently five, of nine or ten judges. The Sections are changed every three years to ensure a rotation of judges across the Sections, a time frame that will correspond with the election or re-election of the President, Vice-Presidents, and Section Presidents. The composition of each Section is geographically and gender-balanced and is designed to reflect the different legal systems among the contracting parties.62 Decisions as to admissibility are taken by Chambers of seven judges or, in clearly inadmissible cases, by single judges or Committees of three judges. Decisions on the merits of admitted cases are taken by Chambers or the Grand Chamber. Committees have been empowered by Protocol 14 to adopt judgments in cases concerning issues of well-established case law (so-called WECL cases). Normally, any given Chamber or Committee formation is composed of judges from within the same Section. The Grand Chamber of 17 judges is drawn by lot from across the Sections.63

The procedures followed by single judges, Committees, Chambers, and the Grand Chamber are set out separately in sections 2–7 of this chapter, but in essence the formation that will make the final decision or judgment on an application will depend entirely on the case’s relative merit and importance.

VII. The Court’s Registry

Article 24 of the Convention provides: ‘The Court shall have a registry, the functions and organisation of which shall be laid down in the Rules of Court.’ Article 24(2) provides that when dealing with single-judge cases (ie inadmissible de plano) the court shall be assisted by non-judicial rapporteurs forming part of the registry appointed by and acting under the authority of the President. The task of the Registry is to provide legal and administrative support to the Court in the exercise of its judicial functions. Its role in maintaining the highest efficiency in the management of applications and in the implementation of the Court reform process has been particularly stressed in the Brussels Declaration.64 p. 119The Registry is composed of lawyers, administrative and technical staff, and translators.65 It also has a Research Unit operating under the authority of the Court’s Jurisconsult and a Filtering Section responsible for single-judge decisions and the development of best practices throughout the registry in the handling of inadmissible cases and interim measures. The Court elects its Registrar and Deputy Registrar—the head and deputy head of the Registry, respectively.66 Each of the Court’s five judicial Sections is assisted by a Section Registrar and a Deputy Section Registrar. The Filtering Section is under the supervision of the Filtering Section Registrar. The principal function of the Registry is to process and prepare for adjudication applications lodged by individuals and states with the Court.67 The lawyers prepare files and analytical notes for the judge rapporteurs. They are also responsible for drafting decisions and judgments under the supervision of the judge rapporteur and the Registrar, responding to inquiries and investigating issues of national or international law relevant to the Court’s work. Their legal work is subject to different layers of review: first within the Registry itself by Heads of Units (Senior Legal Advisers) and the Registrars; then by the judge rapporteur (in Chamber or Grand Chamber cases); and ultimately by the Court itself. They also correspond with the parties on procedural matters.68 The Registry is recruited by the Council of Europe but is necessarily autonomous in the performance of its functions in order to preserve the independence of the Court and ultimately answerable only to the President of the Court. As a matter of convention, this autonomy has been more or less respected in practice by successive Secretaries General of the Council of Europe, and in 2012 was officially recognized by the Council of Europe by the delegation of various administrative powers to the Court’s Registrar.69

2.p. 120 Procedure before the Court (I): From the Initial Application to Judgment

I. Individual Complaints

As the statistics of individual complaints indicate, it is almost entirely through the exercise of the right of individual petition (Article 34) that the Court functions. It is considered by the Court as ‘a key component of the machinery’ for the protection of human rights.70

II. Hindering the Effective Exercise of the Right of Individual Petition

Article 34, last sentence, indicates that the contracting parties must not ‘hinder in any way the effective exercise of this right’. The Court has emphasized, in its case law on the scope of this obligation, that it is of the utmost importance for the effective operation of the system of individual petition that applicants or potential applicants are able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints.71 The right is an absolute one and admits of no hindrance. A complaint under the second sentence of Article 34 is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention.72 The word ‘pressure’ is understood as covering not only direct coercion and flagrant acts of intimidation of applicants or their families or legal representatives, but also other improper indirect acts or contacts designed to dissuade or discourage them from pursuing a Convention remedy.73 In making its assessment of whether improper pressure has been imposed on an applicant, the circumstances of each case will be examined and the Court will have particular regard to the vulnerability of the complainant and their susceptibility to influence exerted by the authorities.74 Interference with an applicant’s letters to a lawyer or to the Court concerning the filing of an application or the carrying out of reprisals on an applicant would also give rise to an issue under Article 34.75 In Buldakov v Russia, the Court found a violation after it was established that the prison authorities had not posted 900 pages of irreplaceable documents and had lost them.76 Refusal to allow the applicant p. 121to make copies of medical documents essential for his claim or a requirement that a prisoner with no resources pay for copies of documents have been considered to violate this provision.77 Article 34 may impose on the state authorities an obligation to provide copies of documents to applicants who find themselves in situations of particular vulnerability and dependence and who are unable to obtain the documents needed for their files without state support.78 Refusals by the authorities to allow applicants to meet with their lawyers with a view to bringing proceedings, despite interim measures by the Court requiring the authorities to facilitate such contacts, have also led to violations.79 In McShane v UK,80 the Court found a violation under this head after the lawyer was reported by the police to the Law Society for breaching confidentiality by disclosing documents to the applicant for the purposes of the application before the Court. Although no action was taken against him by the Law Society, the Court found a violation on the basis that the initiation of disciplinary proceedings could have a ‘chilling effect’ on the exercise of the right of individual petition by both lawyers and applicants. The context in which alleged interference takes place is also of importance. In Annagi Hajibeyli v Azerbaijan,81 and a series of later cases against Azerbaijan,82 the Court found a breach of Article 34 in relation to seizure from the lawyer’s office of the entire case files relating to the applicants’ pending applications before the Court. Putting pressure on villagers from south-east Turkey, who feared reprisals, to withdraw their applications and filming an interview by state authorities with them about their application was considered improper behaviour.83 So was questioning by the very gendarmes whose behaviour was the subject of the application in Strasbourg.84 The Court has also stressed that it is unacceptable to question an applicant where doubts have arisen concerning the authenticity of the power of attorney of the person acting for them; where a government believes that the right of petition is being abused, the correct course of action is to inform the Court and not bring the applicant in for questioning.85 Not all questioning by the authorities, though frowned upon by the Court, leads to a finding of a breach of this provision. In Sisojeva v Latvia,86 in an immigration context, the applicant was questioned by the security police about her application. However, the Court, while sceptical about the supposed reasons for the interrogation, emphasized that there was no evidence of pressure or intimidation, and that there were no legal consequences when she refused to answer the questions. In Ahmed v UK,87 in the context of a review of immigration detention, the Court stressed that when presenting the possible options to an applicant a distinction should be made between pointing out the options available in a neutral manner and ‘dissuading or discouraging’ him from pursuing his complaint before the Court. In that case, where the applicant had been advised by the authorities that his detention p. 122would be reduced if he were to withdraw his application and accept voluntary return, the Court found no violation of Article 34. It took into account the relevant context, namely the fact that such statements had formed a small part of each review of detention and that other circumstances of the case had been set out in a factual and neutral manner, as well as the fact that legal aid had been provided to the applicant. Refusing to comply with the Court’s interim measures is also considered as a hindrance in breach of this provision.88 In addition, account should be taken of specific requirements on the parties to cooperate fully in the conduct of proceedings, to comply with orders of the Court, and to provide all information requested by the Court.89 A failure to comply with these provisions is a relevant factor in determining compliance with this elementary but crucial obligation.90

III. Inter-State Complaints

Article 33 (formerly Article 24) provides that any contracting party may refer to the Court any alleged breach of the Convention and the Protocols thereto by another contracting party.91 The right to bring a case flows directly from the ratification of the Convention and is not subject to any other conditions. In bringing an application, the state is fulfilling its role as one of the collective guarantors of Convention rights. As the former Commission indicated in Austria v Italy,92 Convention obligations are essentially of an objective character, being designed to protect ‘the fundamental rights of individual human beings from infringement by any of the High Contracting Parties rather than to create subjective and reciprocal rights for themselves’. From this characterization of the nature of the Convention, the former Commission deduced that a contracting party could refer to the Commission any alleged breach of the Convention, regardless of whether the victims were its nationals or whether its own interests were at stake. It is not exercising a right of action for the purpose of enforcing its own rights, but rather to bring before the Commission an alleged violation of the public order of Europe.93 The complaint under Article 33 forms part of the collective enforcement of human rights referred to in the Preamble.94 It follows from this notion of the collective guarantee of the Convention that the principle of reciprocity is subordinated to the states’ right to take enforcement action. Thus, in Austria v Italy, the Commission accepted that Austria could file a complaint against Italy concerning matters arising before Austria became a party to the Convention. It appears to follow that an applicant state would not be prevented from complaining under Article 33 because it had entered a reservation to the provision allegedly violated by the respondent state or because the right concerned is protected by a Protocol which the applicant state has not ratified.95 Nor is it relevant that the applicant government has not been recognized by the p. 123respondent government.96 Inter-state complaints under Article 33 differ from individual complaints in the following respects:

(i)

Under Article 33, states may refer ‘any alleged breach’ of the Convention to the Court while individual applicants can only complain under Article 34 of a violation of their rights and freedoms in the Convention. Thus, allegations can be made of breaches of procedural as well as substantive provisions of the Convention. However, the significance of this difference has been diminished by the Court’s recognition that the individual can complain of breaches of Articles 34 §1 (in fine), 38, and 46 (see section 3.V).

(ii)

The state can challenge a legislative measure in abstracto where the law is couched in terms sufficiently clear and precise to make the breach apparent or with reference to the manner in which it is interpreted and applied in concreto.97 In contrast, the individual must show that he is a ‘victim’ of the measure complained of.

(iii)

The only formal admissibility requirements are the local remedies and the four-month rule (Article 35). The requirements contained in Article 35(2) and (3) apply to individual complaints only (see section 2.I).

(iv)

An inter-state application is automatically communicated to the respondent government for observations on admissibility. The Court has no discretion in this respect. Moreover, unlike the procedure in individual cases, there are separate proceedings on questions of admissibility and the merits (Rules 48, 51, and 58 of the Rules of Court).

In comparison to cases concerning individual applications, in practice there has been a significantly lower number of inter-state applications. However, in recent years there has been an increase in the number of applications arising mostly from the various inter-state conflicts, some of them enduring today and giving rise to more than one application.98

p. 124In many of the cases that have been brought, the applicant state has had a political interest to assert in the proceedings, often connected to a long-standing political dispute between the two states concerned.99 Often they have concerned allegations of violations of human rights on a large scale involving no national interest but evoking a concern for the ‘public order of Europe’. The reality is that states will be reluctant to have recourse to legal action under the Convention to resolve their disputes. In the close-knit community of like-minded states in the Council of Europe, contracting states will be reluctant to jeopardize their good diplomatic relationships with other states and undoubtedly prefer negotiation to a legal process which may be lengthy, counterproductive, and ultimately ineffective.100 In some instances, however, there are ‘hidden’ or ‘silent’ inter-state cases where the long-standing political conflicts between states are argued before the Court from the perspective of an individual applicant, national of one state, bringing the case under Article 34 against the other state concerned.101 In any event, governmental bodies or public companies under the strict control of a state cannot bring an individual application against another state under Article 34.102

While the Court has jurisdiction to hear inter-state cases and, under more restricted conditions, to give advisory opinions, the vast majority of its work is based on individual applications lodged under Article 34.103 The Convention itself does not provide for any different procedures to be followed for inter-state cases, though Rules 51 and 58 of the Rules of Court provide for automatic notification to the respondent government and separation of the admissibility and merits phases of the procedure. There is, for example, no express requirement that such a case be heard by the Grand Chamber, though such cases are potential candidates for Grand Chamber examination following relinquishment if no friendly settlement takes place before the Chamber.104

IV.p. 125 The Application

The official languages of the Court are English and French, but an application may be sent in the language of any of the contracting parties.105 However, if the case is communicated for observations, all communications (including oral and written submissions) shall be in one of the official languages unless a special exemption is granted by the President. When a case is communicated, accompanying Annexes to the observations need not be translated into the official languages and can be sent in the language in which they were lodged.106

Save in exceptional circumstances (such as an imminent expulsion or deportation), the Registry will take no immediate action on a simple letter setting out the complaints of the applicant. The prospective applicants will be sent an application form which they will be asked to complete. Only a duly completed application form will interrupt the running of the four-month time limit.107

V. How to Present an Application

Rule 47 of the current Rules of Court sets out what the application form should contain, as, of course, does the form itself.108 Failure to comply with the requirements of Rule 47 often results in the application not being examined by the Court, and applicants will be warned if they do not.109 A legal representative must provide a form of authority signed by the applicant authorizing him to act in proceedings before the Court. The form must also be signed by the representative. In response to the growing number of individual cases, the Court has decided to tighten its procedure under Rule 47. The current Rule 47 policy entered into force on 1 January 2014, and it has been twice further developed since then.110 It requires applicants to follow to the letter the instructions provided for filing an application. Its purpose is to achieve greater efficiency in the way applications are dealt with at the initial stage of the process before the Court and to facilitate the filtering of cases.111 There are two main changes. Both represent an important break from past practices.

The first is that applicants must provide the Court with sufficient information in the application form itself to allow it to conduct an initial analysis of the application. Each application form submitted to the Court should contain all the essential information about the complaints made and be accompanied by the necessary supporting documents (in particular, copies of the relevant domestic decisions and the remedies used). As Rule 47 indicates, the application form will be self-contained in the sense that it should be possible for the Court to see from the form alone what the applicant is complaining about p. 126and under what heads of the Convention.112 This will allow the Registry to determine the nature and scope of the case at the outset. In this way, high-priority cases can be identified at the initial stage. Similarly, applications with obvious problems of admissibility will be submitted rapidly to a single judge for decision. Applicants must provide the Court with a concise and legible statement of facts and be clear in the way they formulate and argue their complaints. Recognizing that there are cases which are factually and legally complex, additional pages will be accepted, up to a maximum of 20. However, these can only develop and cannot replace the statement of facts, complaints, and compliance with the admissibility criteria that must be on the application form itself. Crucially, unlike the previous practice under Rule 47, if an applicant fails to comply with the formal requirements, the application will be administratively rejected de plano as being non-compliant. The Court retains, however, a general discretion to accept an application in certain circumstances.113

The second reform concerned the six-month (and now four-month) time limit.114 Under previous practice, the time limit could be interrupted by an incomplete application or a simple letter. Under the amended rule, only an application satisfying the formal requirements (submission of completed application form plus supporting documentation) would interrupt the running of the time limit, the relevant date being that of the postmark on the envelope. Registry staff have been instructed to examine all new applications promptly, so as to allow applicants a second chance to introduce their application, where possible.115 If the applicant re-submits their application outside the relevant period, it will be referred to the single judge for rejection as inadmissible. Where justified, the Court may consider that the time limit was interrupted on a different date, so as to permit the further examination of the application. This could apply, for example, in case of administrative error by the Registry, or if the submission of the form to the Court was unduly delayed through no fault of the applicant.

VI. Priority Policy for Dealing with Cases

The Court introduced a priority policy to deal with cases in 2009. In May 2017, the priority policy was reviewed and further adjusted to address the situation of the Court’s case workload.116 Faced with a constant increase in cases, the Court decided to abandon the general rule that cases would be dealt with in the order in which they were lodged. The aim is to ensure that the most serious cases and the cases which disclose the existence of p. 127widespread problems capable of generating large numbers of additional cases are dealt with more rapidly. Low priority is given to cases (the so-called clone or repetitive cases) which follow a pilot judgment establishing a structural problem. The lowest categories of priority are cases which are identified as clearly failing to satisfy the admissibility conditions.117 The Court will deal with applications in the following order:

(1)

urgent applications (in particular, where there is a risk to the life or health of the applicant, the applicant is deprived of liberty as a direct consequence of the alleged violation of the Convention, other circumstances linked to the personal or family situation of the applicant, particularly where the well-being of a child is at issue; application of Rule 39 of the Rules of Court);

(2)

applications raising questions capable of having an impact on the effectiveness of the Convention system (in particular, a structural or endemic situation that the Court has not yet examined, pilot judgment procedure namely, the case to be used as the pilot case) or applications raising an important question of general interest (in particular a serious question capable of having major implications for domestic legal systems or for the European system);

(3)

applications which, on their face, raise as main complaints issues under Article 2, 3, 4, or 5(1) of the Convention (‘core rights’), irrespective of whether they are repetitive, and which have given rise to direct threats to the physical integrity and dignity of human beings;

(4)

potentially well-founded applications based on other Articles;

(5)

applications raising issues already dealt with in a pilot/leading judgment (‘repetitive cases’);

(6)

applications identified as giving rise to a problem of admissibility;

(7)

applications which are manifestly inadmissible.

In principle, cases in a higher category will be eligible for examination before those beneath it, although it remains open to the President to decide to give priority to a particular case (Rule 41 of the Rules of Court).

This case-processing policy has been constantly kept under review within the Court. For instance, inter-state cases which used to be in category 2 are now outside the priority policy. This was explained by reference to their special character and the fact that they are in any event subject to a special procedural treatment. Its inadequacy related to the fact that it allowed for a possibility that cases raising important issues concerning, for instance Article 10 of the Convention, fall under category 4 and are not generally accorded priority.

In March 2021, the Court put in place a new case-processing strategy—‘A Court that matters/Une Cour qui compte’118—aiming to identify ‘impact’ cases in category 4 (potentially well-founded applications). At the time, there were 17,800 cases in category 4, which on average took the Court between five to six years to process. However, some of them, although not necessarily concerning the ‘core rights’, raised very important issues of relevance for the state in question and/or the Convention system as a whole. The Court therefore decided to tag them as ‘impact’ cases and to create new case-processing category 4-High.119 The criteria for identifying cases as ‘impact’ are flexible. The Court gave the following examples of such cases: the case might lead to a change or clarification p. 128of international or domestic legislation or practice; the case touches upon moral or social issues; or the case deals with an emerging or otherwise significant human rights issue. In addition, when any of these criteria are met, the Court takes into account the media coverage of the case.120 The effect of the new case-processing strategy is to ensure that the Court’s case law addresses issues contemporaneously and not with a delay of five to six years as it normally took to process the category 4 cases. There is also another, more practical, effect of the strategy: the Court decided that the cases falling within category 4 which are not ‘impact’ cases would be processed through summary procedures before Committees of three judges, while ‘impact’ cases would be processed by Chambers and/or the Grand Chamber.

VII. The Single-Judge Procedure

Cases which are obviously inadmissible or clearly hopeless, even though they may sometimes concern important questions and are supported by detailed written submissions, will be rejected by a single judge in a brief decision.121

The single judge is assisted by a non-judicial rapporteur appointed by the President from amongst the senior lawyers in the Registry. The non-judicial rapporteur will in practice prepare a number of cases to be rejected by the single judge in this way. Most of the judges in the Court can act as single judges for this purpose, thereby enabling a large number of such decisions to be taken rapidly. The Court, in a short space of time, has come to rely on this procedure for reducing the continuously increasing number of misconceived cases which have clogged the Court’s docket.122 The results have been impressive, and the procedure has become an important part of the Court’s armoury. The single judge cannot take decisions concerning his own country. They can only reject a case as inadmissible. They have no power to communicate a case to the government or to declare cases admissible. They may, however, refer the case to a three-judge Committee or to a Chamber. The decisions of the single judge are final, and no further correspondence will be entered into. However, in very exceptional cases where the Court itself has made a factual or legal mistake in the course of its examination—such as the date of the final decision for the purposes of the four-month rule—it has an inherent power to re-open the case and restore it to the list.123 This power would not, however, be used where the source of the error lies with the lawyer in the presentation of the case.124

Within the context of the enhanced use of the single-judge procedure, the decisions of single judges were initially notified to the applicants or their representatives by a letter, p. 129briefly indicating that the admissibility requirements under Article 35 of the Convention had not been met. Faced with the criticism of a lack of reasoning of such decisions, the Court was invited by the Brussels Declaration (2015) to provide brief reasons for the inadmissibility decisions of a single judge, as from January 2016. The Court responded to this call in June 2017 by launching a new system for single-judge decisions with more detailed reasoning. Instead of a decision letter, applicants now receive a decision of the Court sitting in single-judge formation in one of the Court’s official languages and signed by a single judge, accompanied by a letter in the relevant national language. The decisions normally include reference to specific grounds of inadmissibility. However, in some instances, where applications contain numerous ill-founded, misconceived, or vexatious complaints, the Court issues rejections by using a global formula of inadmissibility.125

VIII. Committee Procedure

In accordance with Article 28 of the Convention, Committees of three judges can either declare cases inadmissible, strike cases out of the list, or consider the merits of repetitive cases with powers to declare them admissible or adopt judgments.126 The first category of cases are normally those that will be sent to the Committee by a single judge, who considers that the case merits consideration by three judges, or by a judge rapporteur, who considers that the case does not merit examination by a Chamber. The decision must be unanimous, and the Committee can only declare such applications inadmissible.127 Its decision is final. If the Committee fails to reach agreement, the case will be sent to a Chamber for decision. Although national judges do not necessarily sit in the Committee dealing with cases concerning their countries, they will be provided with the copies of draft decisions concerning them and can make their views known.

But Protocol 14 also conferred on the Committee the power, by unanimous vote, to declare cases admissible and adopt final judgments in cases where the underlying issue concerns an issue of well-established case law.128 This was the Protocol’s answer to the recurring problem of repetitive or clone cases concerning the same subject matter that make up a large part of the Court’s docket. In order to placate certain contracting parties who were uneasy about conferring such powers on only three judges, and who may have contested the use of the procedure in the particular case, Article 28 provides that the national judge may be invited to take the place of one of the three judges ‘having regard to all relevant factors’, including whether the contracting party has contested the application of the procedure. The Explanatory Report to Protocol 14 indicates that the presence of the national judge may be useful to the Committee where the state has contested the procedure because of the judge’s familiarity with national law and practice, which will enable the Committee to better assess the objection. When an objection has been made by a contracting party, the decision to continue with the procedure will be taken by the Committee.129 The state may contest the applicability of the WECL procedure, but it does not have a veto over the procedure. Where the Committee fails to reach a unanimous decision on the case, p. 130it will be sent to a Chamber for decision. It also remains open to the Committee to reject the case as inadmissible, for example if it considers that domestic remedies have not been exhausted. Although simple and accelerated, the new procedure will ‘preserve the adversarial character of proceedings and the principle of judicial and collegial decision-making on the merits’.130 Each of the five Sections constitutes a number of Committees for a period of 12 months and each Section generally has three.

The Committees have adopted an accelerated procedure for dealing with obviously well-founded repetitive cases. The cases are communicated to the government by the President of the Section (often in groups) on the basis of a very succinct statement of facts with a view to reaching a friendly settlement. The Court does not ask for observations in such cases, but governments retain the right to file observations in appropriate cases. Where observations are received, they are submitted to the applicant for information only. If no friendly settlement is reached or there is no unilateral declaration admitting liability, the Court will ask the applicant to submit just satisfaction claims. In such cases, applicants are not required to be represented by a lawyer and normally are not eligible for legal aid if they are. The judgment adopted by the Committee where there is no settlement will be brief.

Such judgments are final and thus may not be referred to the Grand Chamber (Article 28(2)). The procedure has proved itself to be particularly efficient for some cases, such as conditions of detention or length of proceedings.

IX. Chamber Procedure: Communication and the Joint Procedure

Cases which are not clearly inadmissible, or which raise a prima facie issue will initially be assigned to a Chamber of seven judges, which can take a number of steps from declaring the application inadmissible to declaring it admissible and subsequently adopting a judgment on its merits. With the new ‘impact’ case-processing strategy, normally only ‘impact’ cases are assigned to Chambers.131 If an application is assigned to a Chamber, a judge rapporteur will be nominated by the President of the Section. They have the task of presenting the application to the Chamber and formally proposing the various procedural steps that the Chamber may take. The rapporteur may propose that the President communicate the case to the government for observations on the admissibility and merits. Most cases are communicated in this way in current practice, although it remains open to the Chamber to take the decision to communicate the case if it sees fit. If the case has not been communicated, then the Chamber, on the proposal of the judge rapporteur, may immediately adopt an inadmissibility decision, which is published on the website,132 though this, too, is final and not subject to appeal. Where the application is communicated to the respondent government, this will involve sending a copy of the application to the government with all relevant documents, a statement of facts prepared by the Registry, and a question or series of questions that their observations should address.133 In 2016, the Court p. 131introduced the immediate simplified communication procedure (IMSI) aimed at more efficient communication of cases to states. Instead of drafting a detailed summary of the facts at the communication stage, the Registry now forwards to the respondent government the application form, complying with the strict Rule 47 requirements, and indicates the subject matter of the application and sets out the questions the parties should address in their pleadings.134

Once the observations are received, the applicant will be given an opportunity to submit observations in reply with any claims for just satisfaction under Article 41 of the Convention. The government will be given a final opportunity to make further submissions in reply, after which the case is considered by the Chamber.135 At this stage, the government cannot introduce a new inadmissibility objection that has not been made in the first round of their observations.136 If any further observations are received at this stage, they will be considered as unsolicited and, unless the President of the Chamber decides otherwise, they will be returned to the party and not admitted to the file.

It became the rule in recent years, due to the large number of pending cases, and for reasons of economy of process, for the Court, by expressly invoking former Article 29(3) of the Convention, to examine jointly the admissibility and merits of the application.137 This practice is reflected in Article 29(1), which makes joint examination the norm, though leaves open the possibility that a separate decision on admissibility be taken in a particular case. It is open to the parties to request the Court to take a separate decision, but this would require special reasons for doing so. Such decisions are increasingly rare. A separate admissibility decision is final and cannot be referred to the Grand Chamber, whereas a judgment which considers admissibility and merits together can be so referred.138

X. The Grand Chamber

While the vast majority of the Court’s work takes place in Committees and Chambers, the Grand Chamber is the constitutional formation of the Court. It consists of 17 judges and has the task of hearing and giving judgment on the most important cases.139 It also has the central function of ensuring overall coherence and consistency of the Court’s case law. Cases come before the Grand Chamber by two means: relinquishment by a Chamber p. 132before it renders its judgment (Article 30) and, after a Chamber gives judgment, if one of the parties requests referral (Article 43). In the former case, the simple decision to relinquish is enough to seize the Grand Chamber of the case.140 In the latter case, the Convention provides for a panel of five judges of the Grand Chamber, which decides whether to accept or reject the party’s request.141

The criteria as to when a Chamber should relinquish (Article 30) and when the panel should accept a referral request (Article 43) are slightly different. The drafting history of Protocol 11 does not shed any light on the difference of wording. Moreover, in practice, the criterion of case law consistency, which is not mentioned in Article 43 but is in Article 30 (relinquishment), is also relevant when deciding whether to refer a case to the Grand Chamber.142

In relation to Article 30, the procedure is for the Chamber in question to notify the parties of its intention to relinquish and to give them two weeks to submit any comments they wish to make (Rule 72(3)). After that, the Chamber will formally relinquish. Rule 72(4) indicates that reasons need not be given for the decision to relinquish. After the removal of the parties’ possibility of veto the decision to relinquish by the coming into force of Protocol 15, it is not clear what is the purpose of inviting the parties to submit comments on the intention to relinquish. The Explanatory report to Protocol 15143 indicates that the aim of the removal of the right of veto was to accelerate the proceedings before the Court concerning cases which raise a serious question affecting the interpretation of the Convention or a potential departure from existing case law. However, the Explanatory report then indicates that ‘it would be expected that the Chamber will consult the parties on its intentions’. This is in contradiction with the intention to accelerate proceedings since the correspondence with the parties generates further work both for the parties and the Court and it also, without a clear reason or benefit from the parties’ submissions, delays the proceedings by at least two weeks in which the parties may submit their comments.

The composition of the Panel that considers requests for referral under Article 43(2) is not provided for in the Convention (though the matter is governed by Rule 24(5) of the Rules of Court).144 Following a change in the Court’s practice, requesting parties are now p. 133told the names of the judges who considered their request. However, they are not given reasons for the decision to accept or reject their request.145 This has been consistently refused by the Court on the grounds that it was not a Convention requirement and would give rise to an unacceptable increase in its work.146

All parts of the judgment can be grounds for referral, including the level or means of calculating just satisfaction under Article 41.147 It therefore sometimes occurs that both parties request referral.148 The request for referral must be received by the Registry within three months of the date of the judgment, failing which the panel will not examine the request, even though it may have been posted within the three-month period.149 This is different from the application of the four-month rule in respect of new applications, where the date will normally be taken as the postmark or the date the letter was written, rather than the date of registration at the Court’s Registry.150 The difference with referral requests is that judgments automatically become final three months after their delivery, unless the parties request referral, so there is a greater interest in legal certainty. The Court and the outside world have a stronger interest in knowing when its judgments acquire the status of res judicata. In most cases, faxing a copy of the request within the three-month period will prevent any problems arising. The Panel accepts very few requests for referral and the fact that the Chamber may have been divided is not necessarily an indication that the case will be accepted. While Article 43 does not explicitly mention departure from previous case law as a ground on which the Panel of five judges may accept a case, a ‘serious issue affecting the interpretation’ of the Convention could arise if a Chamber gave a judgment which significantly develops the case law. This would be an indication that an issue of consistency was involved which might require an authoritative interpretation by the Grand Chamber.151 New issues on which there is no established case law or high-profile cases are also likely candidates for acceptance.152 In cases where there is more than one applicant, a request for referral by one applicant can be taken as a request on behalf of all applicants.153

p. 134It is not open to the parties to contest the decision of the Panel on the question of referral to the Grand Chamber.154 When a case is referred by the Panel, the scope of the case before the Grand Chamber is not limited to the grounds set out in the referral request: instead, it embraces all aspects of the application. The ‘case’ referred to the Grand Chamber is the application as it has been declared admissible, as well as the complaints that have not been declared inadmissible by the Chamber.155 The Grand Chamber may also reconsider admissibility objections raised by the government where these have already been addressed by the Chamber, and thus it is entitled to come to a different conclusion from that of the Chamber.156 Subject to the above, a government will be estopped from raising an objection of non-exhaustion of domestic remedies for the first time before the Grand Chamber.157 However, it will not be estopped from raising for the first time other inadmissibility objections, which the Court could examine on its own motion.158 It would not be open to a government to put arguments which are inconsistent with those raised before the national courts. Thus, a government could not argue before the national courts that there existed a national emergency but contend the opposite before the Strasbourg Court,159 or to argue that persons had not been killed by the security forces if that point had not been contested before the national courts.160

In Pisano v Italy, the Grand Chamber stated that once a case is referred, it may ‘employ the full range of judicial powers conferred on the Court’.161 Hence, it may approve friendly settlements, strike-out cases, and form its own assessment of the facts of the case even where the original Chamber has already addressed such issues. Equally, after it accepts a referral request, it remains open to the Grand Chamber to limit the scope of its examination of a case at any stage in the proceedings and to adopt a judgment on a preliminary issue of admissibility.162 Finally, after it accepts a referral request, the Grand Chamber may also strike out part of a case and at the same time give judgment on the merits of other complaints.163 Moreover, an unprecedented procedural decision was taken in the Grand Chamber case of Burmych and Others v Ukraine,164 where the Court, when examining five cases concerning the effects of an unsuccessful pilot judgment procedure in the case of Yuriy Nikolayevich Ivanov v Ukraine,165 related to the non-enforcement or delayed enforcement of domestic court decisions, struck out from its list a further 12,143 cases on the matter, considering that the examination of those cases formed part and parcel of the process of execution of the pilot judgment under Article 46 of the Convention.

In Radomilja and Others v Croatia,166 the Grand Chamber explained that the scope of a case ‘referred to’ the Court is determined by the applicant’s complaint, which consists of p. 135two elements: factual allegations and legal arguments. As regards the latter, by virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the parties. However, as regards the former, the Court cannot base its decision on facts that are not covered by the complaint. The ‘complaint’ in this context covers the original application and additional documents intended to complete the application. The Court may also clarify the relevant facts ex officio.

XI. Internal Mechanisms for Ensuring Consistency of Case Law

The Court is aware that with five Sections operating on a weekly basis and each Section adopting hundreds of judgments every year, there is a risk of divergent approaches or inconsistent application of the case law to the facts of new cases.167 The issue was the subject of much comment and exhortation during the Interlaken, Izmir, Brighton, Brussels, and Copenhagen conferences.168 Apart from the role of the Grand Chamber Panel in deciding on requests for referral, the Court has responded to this risk by creating a variety of structures to address the problem at an earlier stage in the procedure. The first stage is the scrutiny of the draft judgments and decisions as soon as the file is distributed to judges. This is done by a group of registry lawyers under the authority of the Jurisconsult working in the Directorate of the Jurisconsult. Such scrutiny is of a continuous nature and must be completed within a tight deadline, since there is usually only one week between distribution of the files and the meetings of the Sections. Where a potential conflict is noted, the Jurisconsult will draw it to the attention of the relevant judicial formation.169 The Court’s registrars also discuss issues of consistency at the weekly meetings, flagging areas of dispute between the Sections. If the matter is not resolved in this manner, the issue may be referred to the Court’s Bureau, which is composed of the President, the five Section Presidents, the Registrar, and Deputy Registrar. This may be done by the Section Presidents themselves or by the Court’s Jurisconsult. As a measure to promote consistency, during the Brighton reform process the Court argued that governments should no longer have a veto over relinquishment since it prevented the Grand Chamber from examining issues of consistency. This resulted in a provision in Protocol 15 removing the right of states to object to relinquishment in favour of the Grand Chamber.170 As a companion to this provision, the Court amended the Rules of Court to make relinquishment obligatory where the Chamber would reach a result inconsistent with the case law of the Court (Rule 72(2)).

XII. Friendly Settlement and Unilateral Declarations

Article 39 of the Convention provides that at any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement.171 Accordingly, the parties may, at any stage of the procedure, make proposals for p. 136the friendly settlement of the case. Indeed, they are invited to make any proposals when they submit their observations. A friendly settlement proposal will generally involve the offer of a sum of money by the respondent government to the applicant, which the applicant may choose to accept. Occasionally, other terms will also appear, such as in Köksal v Netherlands172 (which concerned a death in police custody) where, in addition to the ex gratia payment of a sum of money, the Dutch Government expressed its ‘deepest regret’ at the death. Another common term of a friendly settlement in immigration cases is for the applicant to be given a residence permit or for the state to give some equivalent undertaking not to deport the applicant.173 States may also promise to make legislative or policy changes.174

The Court ‘placing itself at the disposal of the parties’ in practice means that the Registry acts as a conduit for such proposals and can also suggest appropriate terms of settlement based on comparable previous settlements. It does this on a regular basis in repetitive cases (eg length of proceedings/non-enforcement of domestic judgments) in order to secure a ‘money settlement’. In the practice of the former Commission, there were frequent friendly settlement meetings organized by its Secretary. In 2019, the Court introduced a new practice175 of putting itself at the disposal of the parties (in respect of all contracting states) in order to reach a friendly settlement: the non-contentious phase. According to this practice, the communication of a case is split in two distinct phases. In the first phase (the ‘non-contentious phase’), when a case is communicated to the respondent, the Registry normally makes a friendly settlement proposal.176 The parties then have 12 weeks to negotiate a settlement. If no settlement is reached, the case enters into the second 12-week phase (the ‘contentious phase’) where the parties exchange their observations on the admissibility and merits of the case. While there has been a substantial increase in the number of friendly settlements in recent years,177 repetitive cases account for the majority of these settlements. Moreover, it still remains to be assessed whether the two-phase communication process contributed to the efficiency of the Court’s processing of cases or increased workload and time pressures on the Registry.

Where a settlement is reached, the parties will inform the Court of the terms of the settlement through the Registry. The Court will decide whether the matter has been resolved such that the case can be struck off its list. The criterion for doing so is set out in Article 39(1) and (3) of the Convention, namely if the Court is satisfied that the matter has been resolved and that the settlement has been reached on the basis of respect for human rights as defined in the Convention and its Protocols. When it is so satisfied, the Court will strike p. 137the case out of its list by means of a decision. Article 39(3) states that this shall be confined to a brief statement of the facts and of the solution reached. When the Court is not satisfied that the matter has been resolved, it can refuse to accept the terms of the settlement and, if special circumstances regarding respect for human rights as defined in the Convention and its Protocols require the examination of the application to be continued, it will do so. Such instances are extremely rare and will either be when the Court is concerned about the manner in which a settlement has been reached, if the terms of the settlement are not commensurate to the seriousness of the alleged violation, or if the Court is of the view that the case raises important issues that call for an examination on the merits.178 The Court may also restore to the list cases where the government has not complied with the settlement.179

While the terms of the settlement are usually set out in the decision striking the case out of the list, under Article 39(2), the negotiations leading up to such a settlement are strictly confidential, whether or not the settlement process is successful. Under Rule 33(1), friendly settlement documents are also not accessible to the public, and by Rule 62(2) no offer or concession made during negotiations may be referred to in the contentious proceedings. Pleadings in the contentious proceedings which do so will be sent back to the relevant party, and when breach of confidentiality is established by revealing details to third parties or the press, the Court will reject the case for abuse. In Hadrabova and Others v Czech Republic,180 the Court found that disclosing the terms of these negotiations (the amount of compensation proposed by the Registry) in ancillary domestic proceedings amounted to an abuse of the right of petition. However, in Natsvlishvili and Togonidze v Georgia,181 the Court did not consider the confidentiality principle to be applicable to the settlement negotiations taking place outside its procedural framework, namely directly between the applicants’ family and the domestic authorities, without the parties’ friendly settlement proposals, or at least their positions on the matter, ever being filed with the Registry.182 In Mandil v France, the applicants and their lawyers informed the press of the ongoing negotiations with the French authorities. The Court considered that the act was disloyal and was designed to discredit the government. It rejected the case for abuse.183 On the other hand, the Court requires that the divulgation by the applicant or his lawyer be an intentional act. In one case, it accepted that a simple suspicion was not enough to reject a case for abuse where the disclosure was made by a person who was not involved in the case but by a member of the same religious community.184 Protocol 14 has changed the friendly settlement procedure under the Convention in several important respects.185

When the parties have been unable to agree a friendly settlement, or when the applicant has unreasonably refused a settlement offer, it is still open to the Court to strike a case out when the government submits a unilateral declaration acknowledging liability and undertaking to pay compensation, even though the applicant wishes the Court to p. 138continue to examine the case.186 This will also be possible at the Article 41 stage of the procedure where the matter has been resolved and the applicant has refused an equitable settlement offer.187 Since the Akman judgment, the practice of submitting unilateral declarations leading to a strike-off decision has become almost as important as that of friendly settlement, particularly in repetitive cases that have not led to a settlement because the applicant has refused the offer made by the Registrar calculated on the basis of the Court’s case law.188 The requirement of acknowledging responsibility has not always been insisted on in such clone cases, but it has been a requirement in other more serious cases. The practice has developed because the Court considers that it should not necessarily be for the applicant to determine whether it is to carry out an examination of the merits of the case by withholding consent to the terms of a settlement.

In principle, a unilateral declaration is preceded by a friendly settlement offer. It is only when this has been refused by an applicant that the possibility of filing a declaration arises. However, there are limits to the readiness of the Court to accept such declarations. In Tahsin Acar v Turkey,189 the Grand Chamber sought to define when such a unilateral declaration would be acceptable in a case which concerned a disappearance at the hands of the security forces. A non-exhaustive list of factors to be taken into account included the nature of the complaints made, whether the issues raised were comparable to issues already determined by the Court in previous cases, and the nature and scope of any measures taken by the respondent government in the context of the execution of judgments delivered by the Court in any such previous cases. It would also be material whether the facts were in dispute between the parties. Other relevant factors included whether the unilateral declaration made any admission in relation to the alleged violations of the Convention and, if so, the scope of such admissions and the manner in which they intended to provide redress to the applicant. As to the latter, in cases in which it was possible to eliminate the effects of an alleged violation, the intended redress was more likely to be regarded as appropriate for the purposes of striking out the application. Finally, the Court emphasized that in this assessment it always retained the power to restore the application to its list.190 In the Tahsin Acar case, the declaration did not contain any admission of liability. The Court accepted that a full admission of liability could not always be regarded as a condition sine qua non for striking an application out on the basis of a unilateral declaration by a respondent government, but since the declaration contained neither an admission of liability nor an undertaking to conduct an investigation into the disappearance, it fell short of what was required. Respect for human rights thus required the continued examination p. 139of the case.191 Indeed, in Jeronovičs v Latvia,192 the Court found that following its strike-out decision on the basis of the government’s unilateral declaration acknowledging, inter alia, the applicant’s ill-treatment by the police and lack of an effective investigation in that respect in breach of Article 3 of the Convention, the domestic authorities’ procedural obligation under Article 3 continued to exist. However, it is clear that an assessment will be made on the specific facts of each case, where the nature of the violation alleged and the existence of previous case law against the state concerned will play a role.193 Where a unilateral declaration has been accepted, the domestic authorities should comply with the undertakings of the state in good faith. Otherwise, the Court retains the possibility of reinstating the case to its list of cases and examining the admissibility and merits of it, which will often result in the formal finding of a violation of the Convention by the Court.194

XIII. Striking Out Cases—Article 37

In addition to cases where the government has submitted a unilateral declaration, the Court enjoys the power, granted under Article 37, to strike out cases from its list at any stage of the proceedings. ‘Any stage of the proceedings’ has been given a wide meaning and may even be applied after the parties’ observations have been received and even by the Grand Chamber when a Chamber has already given judgment on the matter.195 The Court (Chamber or Grand Chamber) can also strike out part of an application whilst in the same judgment examining the applicant’s remaining complaints on their merits.196

There are three conditions for striking out applications in Article 37(1): when the applicant does not intend to pursue his application; when the matter has been resolved; or when, for any other reason established by the Court, it is no longer justified to continue the examination of the application (sub-paragraphs (a)–(c) of the Article). For the first, a clear indication that the applicant intends to pursue the application will render the provision inapplicable, but the applicant’s consent is not required for the other two conditions.197 For the second, in assessing whether the matter has been resolved, the Court will ask two questions: first, whether the circumstances complained of directly by the applicants still obtain; and, second, whether the effects of a possible violation of the Convention on account of p. 140those circumstances have also been redressed.198 The first is plainly a factual assessment that will turn on the circumstances of each case. The second, which is largely similar to the Court’s assessment of whether the applicant is still a victim at the time of its examination of the case,199 concerns the questions of whether the circumstances complained of directly by the applicant still obtain and whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed.200 However, under Article 37 § 1(b), it is not a requirement that the government acknowledge a violation of the Convention or that the applicant, in addition to having obtained a resolution of the matter complained of directly, is also granted compensation, as is the case with the victim status under Article 34 of the Convention.201 The Court will attempt to focus on what the ‘matter’ of the case actually is, ie the question in dispute which brings the applicant and respondent state before it. Thus in Association SOS Attentats and De Boëry v France,202 concerning the refusal of France to allow the victims of an explosion on board a passenger plane to sue the Libyan head of state, Colonel Gaddafi, and the applicants’ complaint that this violated their right of access to court under Article 6 of the Convention, it was irrelevant to the matter in dispute that an agreement to compensate the victims of the attack had been reached between Libya and the applicants. This agreement did not enable the applicants to sue Colonel Gaddafi and thus a key aspect of the applicants’ direct complaint persisted, which sufficed to conclude that Article 37(1)(b) did not apply.

The Grand Chamber, in SOS Attentats, also considered the application of Article 37(1)(c). It identified broadly five reasons for striking out an application this way: on the basis of a unilateral declaration by the government; when the applicants had reached a settlement with domestic authorities which largely satisfied their demands under the Convention and they had thus lost their victim status; when the applicant had died in the course of the proceedings before the Court and no heir had come forward (or one had but had no legitimate interest); a lack of diligence by the applicant or his lawyer; and a failure to abide by the Rules of Court (such as failing to appoint a lawyer). This was not considered to be an exhaustive list, since the Court ‘enjoys a wide discretion in identifying grounds capable of being relied upon in striking out an application on this basis’.203

In the immigration context, once an applicant under threat of expulsion has been granted a residence permit and no longer risks being expelled, the Court will consider the matter to have been resolved within the meaning of Article 37 § 1(b). On the other hand, even if the applicant has not been granted a residence permit, the Court can still decide to strike out the application under Article 37 § 1(c) if the applicant no longer faces any risk, at the moment or for a considerable time to come, of being expelled and if they have the opportunity to challenge any new expulsion order before the national authorities and if necessary before the Court.204

p. 141Article 37 provides the caveat that even where one of the three conditions mentioned has been satisfied, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and protocols thereto so requires. Such continuance is a rare occurrence and the Court risks accusations of judicial activism if it proceeds to examine an application and finds a violation of the Convention where there is no longer a live dispute between the parties. Nonetheless, there have been instances where this has occurred. In Karner v Austria,205 the original applicant had complained of his inability to succeed to the tenancy of his homosexual partner when a heterosexual partner would be able to do so. After the original applicant’s death, his heir (the applicant’s mother) waived her right to succeed to his estate. The Court chose not to strike the application out of its list. It recalled that its judgments served not only to decide those cases before it, but, more generally, to elucidate, safeguard, and develop the rules instituted by the Convention.206 In Burmych and Others v Ukraine,207 the Grand Chamber did not consider that the pending cases related to the unsuccessful Ivanov pilot judgment procedure208 raised important issues concerning the duties to be observed by the contracting states other than those already clarified in the different phases of the pilot judgment procedure. For the Grand Chamber, the overall interest of the proper and effective functioning of the Convention system mandated for those cases to be struck out from the Court’s list of cases and to be dealt with in the context of the Committee of Ministers’ supervision of the execution of the pilot judgment.

XIV. Requests for Rectification, Interpretation, and Revision

Article 44 directs that Grand Chamber judgments shall be final. According to the same provision, Chamber judgments become final either: (i) when the parties declare that they will not seek referral to the Grand Chamber; or (ii) three months after the date of the judgment when neither party seeks referral; or (iii) when the Panel of the Grand Chamber rejects any request for referral. However, even when judgments do become final, while not provided for in the Convention, the Rules of Court allow for three types of requests for reconsideration of judgments: requests for interpretation (Rule 79); requests for revision (Rule 80); and requests for rectification of errors (Rule 81). These Rules reflect the Court’s inherent jurisdiction to review the judgment in certain circumstances. Protocol 14 also introduced the possibility of a request for interpretation of a judgment being made by the Committee of Ministers.209 The Explanatory Report stresses that it is not the intention of this new provision to ask the Court to give an opinion on the compatibility of proposed amendments to national law introduced pursuant to the judgment.210

Rule 81 is straightforward and allows the Court, of its own motion or at the request of a party made within one month of the delivery of a decision or judgment, to rectify clerical errors, errors in calculation, or obvious mistakes. The errors, however, must be patent mistakes. The Court will not accept proposals to alter the text of a judgment with a view p. 142to rephrasing or to striking out an argument. It will correct obvious mistakes, for example as regards the text of legislative provisions or the professional qualifications of those appearing before it. However, nothing that might affect the substance of the decision reached could be dealt with under this head.211 The Court need not wait for such a request and can correct such basic mistakes itself by way of its editorial revision of judgments. This possibility is noted in the preface to all Court judgments. Thus, while the parties have one month to inform the Court of the necessity to correct a patent mistake, even if they submit their request beyond that time limit, the Court may take it into account and correct the mistake on its own initiative.

Rule 79 allows either party to request interpretation within a period of one year following the delivery of the judgment. The request must state the point or points in the operative provisions of the judgment on which interpretation is required. The Chamber may of its own motion refuse the request. If it does not do so, the request is communicated to the other party or parties who have the opportunity to submit comments. An oral hearing can also be held before the Chamber gives its decision by way of a judgment. Requests for interpretation of judgments have been rare and have related to issues concerning the payment of compensation. In the first such request, the Court held in Ringeisen v Austria212 that damages awarded under the head of non-pecuniary damage in respect of a violation of Article 5(3) were to be paid directly to the applicant, who was then living in Germany, free from attachment. The Commission had explicitly requested this in view of the applicant’s needy circumstances. The Austrian authorities had paid the money into court, since it had been claimed by various creditors. The government had challenged the Court’s jurisdiction to examine the issue on the basis that the Convention did not provide for requests for interpretation and that the matter was only governed by a Rule of Court. The Court held that it was a matter of its inherent jurisdiction and that such proceedings did not involve an appeal against the original judgment. The Court’s role was limited to clarifying the meaning and scope which it intended to give to a previous decision. The Court has stressed in subsequent cases that the clarification of a judgment does not involve modification in respect of issues which the Court has already decided with binding force. Thus, in Allenet de Ribemont v France,213 where the Court had awarded a global sum to the applicant without making any distinction between pecuniary and non-pecuniary damage, the Court pointed out that it had not provided in its judgment that the sums awarded to the applicant were to be free from attachment, as requested by the applicant, and the matter had been left to the national authorities in accordance with national law. Nor was it prepared to rule, as requested by the Commission, that awards in respect of compensation were to be free from attachment, since it did not have jurisdiction under Article 50 (now Article 41) to issue orders to a contracting party.214 In a similar vein, in the case of Hentrich v France,215 the Court rejected a request for interpretation that the state should pay default interest in respect of delay in payments. This was not considered to be a matter of interpretation as such. The requirement to pay default interest was later introduced by the Court in January 1996.

p. 143The procedure is similar under Rule 80 as regards requests for revision of a judgment. This Rule provides for revision of the judgment when a party discovers ‘a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party’. The party has six months from when it acquired knowledge of the fact to make the request. This time limit is interpreted strictly by the Court. In Grossi and Others v Italy,216 the government’s revision request was rejected for being submitted too late. They had known about the new facts relating to the considerably smaller acreage of the applicant’s property since December 2010 but had waited until October 2011 to make a revision request. Under Rule 80, the Chamber may of its own motion refuse the request. If it does not, the request is communicated to the other party or parties, who have the opportunity to submit comments. Exceptionally, an oral hearing can also be held before the Chamber gives its decision by way of a judgment.

The Court has shown that it is willing to accept revision of a judgment as regards issues relating to Article 41, for example when information is submitted after the delivery of judgment that the applicant has died beforehand, and the Court has been unaware of this fact.217

The Court also clarified in Ireland v UK218 that revision may concern, albeit exceptionally, the reasoning of the original judgment and not only the findings in the operative part. However, in that case, where revision was sought as regards the classification of the five special interrogation techniques as torture, the Court noted that the operative part of the original judgment contained two separate points concerning Article 3 in respect of the five techniques: (i) that their use in August and October 1971 constituted a practice of inhuman and degrading treatment in breach of Article 3; and (ii) that their use did not constitute a practice of torture within the meaning of that provision. Thus, the revision request concerning the classification of the interrogation techniques in fact concerned a finding in the operative part of the original judgment. On the merits, the Court did not consider that the materials submitted by the Irish Government in its request for revision (notably, evidence suggesting that an expert had mislead the Commission as regards the effects of the use of the five techniques) demonstrated that it might have had a decisive influence on the Court’s finding in the original judgment as regards the classification of the ill-treatment in question as inhuman and degrading.

While these cases demonstrate a relatively liberal practice on the revision of matters concerning Article 41, the Court has shown itself extremely reticent to revise its determination of whether or not there has been a violation of the Convention—apart from circumstances where vital facts have been withheld from it, or its reasoning leading to that determination. The Court’s approach is one of strict scrutiny coupled with a clear reluctance to re-open a final judgment on the merits. A heavy burden thus rests with the party seeking to overturn the Court’s original judgment.219 In McGinley and Egan v p. 144UK,220 the Court observed that the possibility of revision was ‘an exceptional procedure’ and that requests for revision should be subject to ‘strict scrutiny’.

XV. Advisory Opinions Requested by the Committee of Ministers

Under Article 47, the Committee of Ministers may request an advisory opinion221 concerning the interpretation of the Convention and its protocols.222 This is subject to two important and constraining caveats: by paragraph two of the same Article, such opinions may not deal with the content and scope of the rights or freedoms defined in Section I of the Convention and the Protocols or any other question the Court or Committee of Ministers may have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention. Given the limited scope for advisory opinions under this provision, it is not surprising that there have only been three requests for opinions.223 In the first, the Committee of Ministers sought an opinion on whether the Commonwealth of Independent States (CIS) Convention was another procedure of international investigation or settlement in the sense of Article 35(2)(b) of the European Convention on Human Rights (ECHR). The Court ruled that it was not competent to give an advisory opinion.224

The Court gave its first advisory opinion on the merits on 12 February 2008.225 The Court considered that it was confronted with a proper ‘legal’ (as opposed to political) question that did not result from any ‘contentious proceedings’—namely, whether it was lawful for the Parliamentary Assembly to reject a list on the grounds that it was not gender-balanced. The Court examined a further criterion not explicitly stated in Article 47—namely, whether it would be expedient for the Court to give an opinion. It held that it was appropriate to give a ruling on this question in the interests of the proper functioning of the Convention system, as there was a need to ensure that the situation which gave rise to the request for the opinion—that is, the disagreement between the Committee of Ministers and the Parliamentary Assembly on this issue—did not cause a blockage in the election system. The Court delivered its second opinion on the question whether it was open to a government to withdraw its list of candidates for election as judge after it had been submitted to the Parliamentary Assembly. The question was an important one for the integrity of the electoral process, which would be clearly undermined if governments had free rein to withdraw their lists at any stage of the process.226

p. 145Article 49 of the Convention provides that advisory opinions shall be reasoned, that judges are entitled to deliver separate opinions, and that the opinion shall be communicated to the Committee of Ministers. Chapter IX of the Rules of Court regulates the Court’s procedure in dealing with advisory opinions. In particular, all requests for an opinion shall be considered by the Grand Chamber of the Court. In addition, under Rule 84(2), contracting parties are given the right to submit written comments which, under Rule 86, may be developed at an oral hearing if the President decides to hold one.227

XVI. Special Advisory Jurisdiction of the Court: Advisory Opinion under the Ovideo Convention on Bioethics

A somewhat specific, although, from the perspective of international public law, not fully exceptional, competence of the Court to give advisory opinions is provided for in Article 29 of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (‘the Oviedo Convention’).228 This is the only instrument of international law—other, of course, than the European Convention on Human Rights—which the Court is formally competent to interpret.229

In December 2019, the relevant Council of Europe’s Committee on Bioethics (DH-BIO) sought an advisory opinion from the Court under Article 29 on the issue of safeguards which states parties to the Oviedo Convention needed to regulate to meet the minimum requirements of protection in the treatment of persons with mental disorders. This was the first occasion on which the procedure under Article 29 of the Oviedo Convention had been used.230

However, the Court found that it did not have competence to answer the specific questions put to it in the request at issue. In particular, the Court explained that its jurisdiction in this context excluded matters of policy and questions which would go beyond the mere p. 146interpretation of the text. Moreover, the Court was mindful not to hamper its contentious jurisdiction under the Convention by interpreting the substantive provisions of the Convention.

3. Procedure before the Court (II): Additional Procedural Matters

Regardless of the judicial formation which finally gives a decision or judgment in a particular case, there are a variety of procedural issues that may arise in a case and which are considered in sections 3.I–3.IX.

I. Publicity

The name of an applicant is public unless the President of the Chamber grants anonymity for good cause shown.231 Anonymity would usually be granted in cases concerning issues of private health, custody, or sex abuse or divorce issues, and it is open to the President to grant anonymity in such cases even though it may not be asked for by the applicant. A mere desire to avoid publicity is not in itself a sufficient reason for anonymity. A request should be made when completing the application form.232 There is also the possibility for applicants to be granted anonymity retrospectively. This was introduced by the Court in response to concerns voiced by applicants who complained that many years after they had brought proceedings details concerning their cases—and perhaps offences that they had committed—remained visible on the internet.233

II. Legal Representation

If the application is introduced by a legal representative, they will be required to submit a power of attorney contained within the application form available on the Court’s website. The power of attorney requires the signatures of both the applicant and their designated representative. It is, of course, possible for the applicant later to revoke that authority and appoint different representatives. There is some flexibility in the initial stages of proceedings as to who can actually be a representative. A legal qualification is not required at the outset of proceedings but only after an application is communicated to the respondent government. Rule 36(2) requires the applicant to be represented by an ‘advocate’ authorized to practise in any of the contracting parties and resident in the territory of one of them, or any other person approved by the President of the Chamber.234 For the UK and Ireland, this can be a solicitor or a barrister/advocate. A number of NGOs have sought and obtained the President’s leave to represent applicants where they have qualified lawyers on their staff who may not have fulfilled all the formalities for private legal practice. Lawyers may be refused permission to act in Court proceedings if the President of the Chamber considers that their behaviour warrants such a decision or if they no longer have the right to p. 147practise.235 It is open to a lawyer practising in a non-contracting party, such as an American attorney or Canadian barrister/avocat, to seek leave to appear.236 Permission may be given by the President of the Chamber to allow an applicant to represent himself. However, the Court would normally insist on the applicant being legally represented or assisted by an advocate,237 particularly if there was to be an oral hearing.238 An applicant who represents himself would only be reimbursed expenses and would not be eligible to receive legal aid.

Failure to comply with the requirement of proper legal representation, as defined in Rule 36§§ 2 and 4(a), may result in the discontinuation of the proceedings before the Court,239 or in a refusal to grant any costs and expenses for the proceedings before the Court.240

III. Legal Aid

Legal aid is available to applicants when it is necessary for the proper conduct of the case and the applicant has insufficient means to meet all or part of the costs entailed,241 but only after an application has been communicated to the government and only at the request of the applicant or his representatives.242 For any request received before communication, the representative will be informed by the Registry that the request is premature, although if legal aid is subsequently granted, the offer will cover the initial preparatory phase of an application. On communication, the applicant is requested to submit a declaration of means, which must be certified by the appropriate domestic authority. It is no longer the rule that governments will be asked to comment on the declaration of means, although the President of the Chamber may request comments if necessary.243 Offers of legal aid will be sent at each stage of the procedure: communication, oral hearings before the Chamber and Grand Chamber, and participation in friendly settlement discussions.244 The amounts offered are small in comparison to legal costs in many western legal systems, but more reasonable when compared with costs in Central and East European countries. They are seen as a contribution to legal costs and it is open to the applicant to recoup the real cost of legal representation under Article 41 if he wins his case.

IV. Oral Hearings

The parties can request an oral hearing at any stage of the proceedings, though it is for the Court to decide if a hearing is necessary. It might decide to do so if some novel point of law is involved. The Court can also on its own motion decide to have a hearing, p. 148which will usually take place in public.245 Since 2007, hearings are usually webcast a few hours after the hearing unless the Chamber decides otherwise.246 In the context of the Covid pandemic, the Court also held online hearings247 and in that respect it has issued the relevant Guidelines.248 It is not open to the parties to object if the Court schedules a hearing. When an oral hearing is set, the parties will be sent a list of questions to be addressed which reflect what the Court considers to be the main questions in the case. These may cover both factual and legal issues. At the end of the hearing, the parties may be given an opportunity to submit supplementary information within a prescribed time limit.

Normally, hearings are the exception at Section level. Most Grand Chamber cases will involve a hearing, but each of the five Sections of the Court will only hold one or two hearings each per year.249 Apart from the bilingual nature of the proceedings, the oral procedure does not differ significantly from similar hearings at the appellate level in national courts, though it may be rather short by comparison. The parties are requested to provide the interpreters with a copy of their submissions at least one day in advance in order to facilitate their work. Each party is given a set time for their intervention (usually half an hour), questions may be put by the judges, and the President may permit a short adjournment to allow the parties to prepare their answers. There follows a brief second round when the parties are given an opportunity to respond to those questions and to the principal arguments of the other side. NGOs intervening as third parties will not normally be permitted to make oral submissions, but contracting parties exercising their rights on behalf of a national under Article 36(1) have a right to appear at the hearing. Contracting parties which have intervened for other reasons may also be authorized to make further submissions at a hearing.250 Under Protocol 14, the Council of Europe Commissioner for Human Rights was granted a right to make written submissions and to appear before the Court.251

V.p. 149 Interim Measures

Requests for interim measures252 are made under Rule 39 of the Rules of Court. Applications before the Court do not have suspensive effect. Consequently, it is not normally open to the Court to issue an injunction to restrain a state from enforcing a particular measure. However, in some situations, as where life or death may be at stake, most commonly in a case of expulsion or extradition to a state where ill-treatment is feared, an injunctive power is necessary if the right of individual petition is to be effective. If this were not the case, the Court could only carry out its examination of the complaint when the feared harm had actually materialized or where the individual had been exposed to the risk of such harm. Accordingly, the object of an interim measure is to preserve and protect the interests of the parties to the dispute pending the Court’s determination of the compatibility of the impugned decision with the Convention, or, simply put, to preserve the status quo. Most of the cases where an interim measure is requested concern expulsion or extradition from the territory of a contracting party. The Court will only issue an interim measure against a state where, having reviewed all the relevant information, it considers that the applicant faces a real risk of serious, irreversible harm if the measure is not granted. The measure may be limited in time or for an indefinite period, depending on the evidence adduced in support of it.

The number of such requests has increased exponentially in recent years, with increased migration to Europe and the development of firm exclusionary policies by many states. Moreover, recent military conflicts in Europe have also given rise to a number of interim measures requests made before the Court.253 However, a certain tension has been created with the contracting parties who expressed concern at the initial growth in the number of measures that were being granted and the length of time it subsequently took the Court to examine the merits of such cases. This has finally led to a reduction in the number of interim measures requests granted. For example, in 2010 the Court granted more than 1,443 requests (mainly in respect of expulsions to Iraq and Somalia). In that year, more than 3,775 requests had been made. By 2012, the number of requests granted had been reduced to 103. Most recently, in 2021, out of 1,920 requests received, the Court granted 227 interim measures.254 Concerned at the growing number of requests, the then President of the Court (Jean-Paul Costa) issued a Practice Statement indicating the Court’s alarm at the sheer number of requests and that the Court was not to be seen as a fourth-instance appeal body against decisions of national immigration tribunals. Interim measures were to be seen as ‘exceptional’. He called on applicants and their representatives to respect the Court’s Practice Direction, which provided guidance on the procedures for applying for a measure and for states to ensure that suspensive remedies existed under national law to enable domestic courts to examine the issue of risk.255 As more failed asylum seekers p. 150are being sent back to their countries of origin, a last-minute application to the Court for a stay against removal is seen as the final bid for asylum. Despite this trend, interim measures are not a new feature of the permanent Court. The old Commission and Court had similar provisions under Rule 36 of their respective rules,256 although the old Court had famously held the Commission’s power to indicate interim measures not to be binding, in part because the Commission had no power to give binding judgments and the Convention lacked a specific interim measures provision.257 What is distinctive about the new Court’s practice on interim measures is that, as a result of the Grand Chamber’s judgment in Mamatkulov and Askarov v Turkey,258 they are now considered binding on contracting parties in that failure to abide by them will in most cases lead to a violation of Article 34 in fine which obliges states not to ‘hinder the effective exercise of the right of individual petition’.259 Moreover, in instances where the domestic authorities acted with such haste to expel the applicant that he was not given an effective possibility to apply for a Rule 39 with the Court, the Court found a violation of Article 34 of the Convention.260

Despite such episodic instances of non-compliance which have, to some extent, increased in recent years, there has always been a good record of compliance with interim measures, even when they were considered non-binding. Refusals to comply are always taken seriously by the Court because of their rule-of-law implications but, given the large number of requests granted, they remain relatively infrequent.261 This can probably be explained by a certain apprehension that the Court could subsequently find a violation on the merits of the case. However, an inherent respect for the rule of law and the proper administration of justice are also factors which arguably weigh heavily with most of the contracting parties in such cases. Where the state has refused to comply, it has often invoked national security reasons for doing so.262

a. Scope

Interim measures can be both positive and negative in character. The majority will be negative (asking states to delay removals) but occasionally the Court will indicate positive measures, such as asking states to provide urgent or emergency medical treatment p. 151to detained persons,263 or to meet with a lawyer to prepare a case before the Court,264 or to ensure that the death penalty would not be carried out.265 It has also used Rule 39 to request hunger strikers to give up their protest to enable the Court to examine their complaints266 and to indicate that the government should secure the applicants’ immediate medical examination by independent experts.267

Interim measures are granted in cases involving ‘an imminent risk of irreparable damage’.268 In practice, the vast majority of cases have concerned deportation or extradition proceedings where there are substantial reasons to believe that there exists a real risk of death or ill-treatment in the country of destination.269 Most recently, the Court has granted a number of Rule 39 requests concerning the migrant situation at the Convention parties’ borders with Belarus in relation to the alleged risk of ill-treatment/death in that country or, in some cases, subsequently in the relevant countries of origin.270 However, where the complaint concerns expulsion to one of the contracting parties, the Court will operate a rebuttable presumption that the guarantees of the Convention will be respected. But the Court has also applied Rule 39 in cases concerning conditions of detention considered dangerous to health or, as in Paladi v Moldova, to provide appropriate medical treatment to detainees,271 or, exceptionally, in Article 5 and 6 cases, where there is a risk of a flagrant denial of fair trial in the country of destination.272 The Court has also applied Rule 39 in certain Article 8 cases involving the return of abducted children pursuant to the Hague Convention to countries where it is alleged that the interests of the child will be irreparably prejudiced.273

However, the Court has applied Rule 39 in cases concerning specific issues arising within contracting parties. In Őcalan v Turkey,274 for example, where the applicant risked the death penalty before the State Security Court, the Court requested, inter alia, that Turkey ensure that the requirements of Article 6 were complied with and that the applicant was able to p. 152exercise the right of individual petition to the Court through lawyers of his own choosing. Subsequently, the Court requested the government to take all necessary steps to ensure that the death penalty was not carried out so that it could carry out an effective examination of the applicant’s complaints under the Convention. Similarly, in a series of cases against Poland linked to the contentions judicial reforms in that country, brought by the domestic judges who complained of the procedure for the lifting of their immunity for the purpose of various domestic proceedings, the Court indicated interim measures according to which the state should ensure that the proceedings concerning the lifting of the judicial immunity complied with the requirements of Article 6, in particular the requirements of an independent and impartial tribunal established by law, and that no decision in respect of his immunity would be taken until the final determination of the case by the Court.275 There is some indication that Polish authorities would comply with these interim measures.

The case of Gard and Others v UK276 is another specific example of the application of Rule 39. In that case, concerning the termination of life-sustaining treatment to a baby suffering from a rare genetic disease, on 9 June 2017 the Court indicated to the government under Rule 39 that it should provide the child with appropriate life-sustaining treatment until midnight on 13 June 2017. However, pending the receipt of the substantive application, the interim measure was further extended until midnight on 19 June 2017, when the application was received, and the interim measure continued. The application was eventually declared inadmissible by a majority of a Chamber of the First Section on 27 June 2017 and the application of the interim measure was accordingly discontinued.277 Rule 39 was applied in Evans v UK,278 where the Court indicated that the government should take appropriate measures to preserve frozen embryos belonging to the applicant until it could rule on whether she could use them over the objections of her ex-boyfriend with whom she had created them. The Chamber subsequently indicated in the operative part of its judgment that the Rule 39 measure was to continue until the judgment became final or until ‘further order’ in order to ensure that the embryos were protected in the event of the case being referred to the Grand Chamber.

There are other examples, outside the context of Article 2 and 3 cases, where Rule 39 may exceptionally be indicated. In March 2017, a wholly exceptional and controversial decision was taken under Rule 39 suspending the enforcement of Georgia’s Supreme Court decision concerning the ownership rights of the Rustavi-2 TV company. The decision also indicated that the authorities should abstain from interfering with the company’s editorial policy in any manner.279 More recently, in the case of the Russian daily newspaper Novaya Gazeta, in relation to the domestic blocking of information concerning the war in Ukraine, the Court indicated an interim measure to the state to abstain from actions and decisions aimed at full blocking and termination of the activities of Novaya Gazeta, and from other actions that could deprive Novaya Gazeta of the enjoyment of its rights guaranteed by Article 10 of the Convention. In its decision, the Court referred to the ‘exceptional context’ in which the decision was adopted.280

b.p. 153 Procedure

Rule 39 requests are dealt with on an urgent basis. The procedures for handling them within the Registry have been revised following the Izmir and Brighton Conferences. All requests are now supervised by a special Section within the Court (the Filtering Section). Decisions are taken by one of the duty judges of the Court appointed by the President to deal with such requests. Owing to the large numbers of complaints being submitted at the last moment, the President of the Court has issued a Practice Direction on Interim Measures, which sets out the proper procedures to be followed by applicants and their lawyers seeking Rule 39 measures.281 Applicants are warned, inter alia, that a failure to make a request expeditiously or to submit all supporting documents—in particular, domestic court decisions—may result in the Court being unable to examine the request properly or in good time. Normally, domestic remedies will have to be exhausted, especially where these have suspensive effect. Where domestic remedies have been exhausted, it is certainly advisable for an application to be brought as soon as possible after an unfavourable decision has been obtained, or even earlier where it is apprehended that there may be a risk of immediate removal in the event of an adverse decision on appeal to ensure that the request can be dealt with in good time. Normally, the state of which the applicant is a national will be informed of the request in accordance with Rule 44 paras 1(a) and (b) of the Rules. That state has the right to submit comments under Article 36. However, the Court has decided not to apply this provision in cases where the reason for applying to the Court is based on a fear of return to that state.282

VI. Investigations and Fact-Finding

In most cases, the facts of the case are undisputed and can be determined on the basis of the facts as found by the national courts.283 The Court will normally accept the facts as established and has indicated that it would require cogent elements to lead it to depart from reasoned findings of fact reached by the national judicial authorities which have had the benefit of seeing and examining the relevant witnesses. Such cogent elements have been found to be present where the fact-finding by the national courts presented serious deficiencies. Thus, in a criminal prosecution against Turkish police officers arising out of the killing of five suspects in four separate arrest operations, the Court noted that there were serious deficiencies in the manner in which the national court established the facts. The Court therefore held that it must treat the findings of fact by the criminal court with some caution.284 It went on to find a violation of both the substantive and procedural obligations under Article 2.

The Court has powers to conduct fact-findings on the spot, although these are rather sparingly used, inter alia because of the amount of resources needed for such missions. Fact-findings by the Court, like those of the former Commission, have concerned many cases against Turkey regarding killings or disappearances or allegations of torture. Other on-the-spot missions have also concerned allegations relating to inhuman and degrading p. 154prison conditions.285 In Ireland v UK,286 the Commission heard over a hundred witnesses in Strasbourg, Norway, and the UK. In Ilaşcu and Others v Moldova and Russia,287 a delegation of four judges took evidence from 43 witnesses in Tiraspol and Chişinău. The witness hearings took place in different locations (a prison, an Organization for Security and Co-operation in Europe (OSCE) office, the headquarters of the Russian army in Transdniestria) and various political figures were heard. In Georgia v Russia (No 1), the Court held fact-finding hearings in Strasbourg on the basis of witnesses put forward by both parties and the Court.288 The number of fact-findings by the Court has steadily diminished over the years.289 This is explicable in part by the development of the case law of the Court concerning the drawing of adverse presumptions in certain circumstances when the government fails to cooperate as requested, as well as a policy to determine even Article 2 cases solely on the basis of a detailed case file, particularly if the facts relate to events that occurred many years ago when the usefulness of hearing witnesses may be in doubt.290 In short, the Court has emphasized the states’ obligation to carry out an investigation into the facts.

The Court has at its disposal other methods of elucidating the facts, such as the appointment of experts, the power to request third-party interventions, and the seeking of reports and opinions by other competent international bodies, primarily within the Council of Europe, but also on occasion from outside. It has also taken the initiative to request third-party interventions from the United Nations High Commissioner for Refugees (UNHCR),291 who accepted and filed submissions before the Court. Another institution of the Council of Europe, the Venice Commission (the European Commission for Democracy through Law), has on many occasions contributed to the proceedings either as a third party292 or by preparing, at the Court’s request, expert opinions relevant to cases being examined by the Court.293 The Grand Chamber case of MSS v Belgium and Greece is a good example of the role played by both the UNHCR and the Council of Europe Commissioner for Human Rights, as well as the NGOs Amnesty International and Médecins sans frontières, in providing key factual information concerning the conditions of asylum seekers in Greece and the operation of asylum law there.294

It should also be noted that the Court has frequent recourse to the fact-finding capacities of other Council of Europe bodies, such as the Committee for the Prevention of Torture (CPT), PACE, and the European Commission against Racism and Intolerance p. 155(ECRI). It has relied in many cases on the reports of the CPT to establish the conditions of detention.295 In DH and Others v Czech Republic,296 it relied on the report of the ECRI to establish, inter alia, the number of Roma children in special schools. PACE resolutions and recommendations are also used by the Court as a source of information concerning the plight of particular minorities or the typical problems of European society, such as terrorism or media concentrations or misuse of data. Finally, there are cases where the applicant’s account of the facts is so well corroborated by other sources that the Court is prepared to consider that the allegations are substantiated to the appropriate standard of proof without the need for a fact-finding.297

The Chamber may appoint one or more of its members to carry out an on-site investigation.298 The applicant and ‘any Contracting Party concerned’ are required by the Rules of Court to ‘assist the Court as necessary’.299 The relevant contracting party shall extend to the delegation the facilities and cooperation necessary for the proper conduct of the proceedings. These shall include freedom of movement and all adequate security arrangements for the delegation, the applicant, witnesses, and experts.300 It is provided in the Rules that ‘it shall be the responsibility of the Contracting Party—to take steps to ensure that no adverse consequences are suffered by any person or organisation on account of any evidence given, or any assistance provided, to the delegation’. Since investigations may take place in trouble zones, this obligation to protect witnesses from reprisals is primordial. It has happened that applicants and witnesses have been intimidated or harmed and even killed in suspicious circumstances.301 Both parties are asked to nominate witnesses and the delegation decides in advance of the mission those witnesses it wishes to hear. The head of the delegation may decide to hold a preparatory meeting with the parties prior to any proceedings taking place,302 which will greatly assist in the organization of the mission. The rules also make provision for the issuing of summonses and the relevant contracting party has the responsibility for servicing any summons sent to it by the Chamber for service. The contracting party is also required ‘to take all reasonable steps to ensure the attendance of persons summoned who are under its authority or control’. The hearing of witnesses is in camera303 and is inquisitorial in style, with the delegates and the representatives of the parties being able to question the witnesses.304 Questions of procedure and objections to lines of questioning are dealt with by the head of the delegation.305 Witnesses are normally not admitted to the hearing room before they give evidence, so that their testimony is not tainted by what other witnesses have said.306 Following the hearing, a verbatim record of the proceedings is drawn up and circulated to the parties for corrections.307 Interpretation is organized by the Registry of the Court, and the costs of the hearing, including reasonable witness expenses, are paid from the Court’s budget.

p. 156The weakness of the Court’s fact-finding machinery lies in the inability of the Court to compel the attendance of witnesses and the production of documents.308 The Convention does not explicitly impose these obligations on contracting parties. However, the failure to ensure the attendance of witnesses or to produce documentation which is considered important to the case can lead to a finding that the state has violated Article 38(1)(a), which requires that states furnish all necessary facilities for the effective conduct of the investigation. The Court has not been shy of recording violations of this provision where the state has failed to cooperate. Equally importantly, the Court has held that in certain instances it is only the government that has access to information capable of corroborating or refuting the applicant’s allegations and that a failure to submit such information which is in its hands without a satisfactory explanation may not only give rise to a possible breach of Article 38(1)(a) but may also give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations.309 The same approach will apply where the state fails to secure the attendance of witnesses at a hearing, thereby making it more difficult to establish the facts. In the case of Akkum and Others v Turkey,310 the Court went a step further and, drawing a parallel with the approach employed in cases concerning injuries inflicted during detention, held that the withholding of vital documents concerning the killings of the applicants’ relatives had the effect of shifting the burden of proof to the government to disprove the applicants’ allegations.

VII. Burden and Standard of Proof

Evidence is presented to the Court in a variety of forms—the decisions of national courts on issues of fact, affidavit evidence of witnesses, medical reports and testimony, official investigation reports, and other documentary evidence, such as video or photographic evidence.311 In many complaints under Article 3 about prison conditions, the Court has relied on reports of the Committee for the Prevention of Torture to corroborate allegations about prison conditions or facilities.312 There is no prohibition of hearsay evidence and no fixed rules concerning illegally obtained evidence, privileged documents, or perjury. Such evidential issues will be decided on a case-by-case basis, having regard to all the facts established in the case and the nature of the allegations. The proceedings are governed by the principle of the free admission and assessment of evidence.313 The case law reveals, however, a distinct approach to the burden of proof, both as regards admissibility issues and issues of fact.314

p. 157At the admissibility stage, the applicant must present facts which are supportive (albeit not conclusive) of his allegations by way of a ‘beginning of proof’ (commencement de preuve), although the practice of the Court today is to examine issues of admissibility and the merits together in cases which satisfy this threshold test and are not rejected de limine. Thus, there should be enough factual elements to enable the Court, at this initial stage, to conclude that the allegations are not completely groundless. As regards issues of domestic remedies, there is a distribution of the burden of proof. The burden is on the state to demonstrate the existence of adequate and effective remedies, but then shifts to the applicant to demonstrate that the remedies adduced by the state are, in fact, inadequate and ineffective. It then remains to the state to rebut the arguments submitted by the applicant under this head.315

At the merits stage, the approach to the burden of proof is subtle and context-dependent. The level of persuasion necessary for reaching a particular conclusion and the distribution of the burden of proof are linked to the specific circumstances of the case, the nature of the allegation made, and the Convention right at stake. The Court may also be attentive to the seriousness that attaches to a ruling that a contracting party has violated fundamental rights.316 For example, as regards expulsion cases raising Article 3 issues, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if removed to the country of destination, they would be exposed to a real risk of being subjected to treatment contrary to Article 3. Where such evidence is adduced, it is for the government to dispel any doubts about it.317 In cases concerning torture or ill-treatment of a detainee, the Court has consistently applied the rule that where a person is detained in good health but is found to be injured on release, it is incumbent on the state to provide a plausible explanation of how the injury occurred.318

The same principle has been applied to the disappearance of a person who had been in custody.319 In cases concerning the use of lethal force by the security forces, the case law conveys the impression that it is incumbent on the applicant to establish a violation of Article 2. As pointed out by Judge Bratza in a dissenting opinion, the wording of Article 2 strongly suggests that it falls to the state to demonstrate that the force used was ‘no more than absolutely necessary’.320

p. 158Generally, it is for the state to demonstrate the ‘necessity’ of an interference with a Convention right under the second paragraph of Articles 8–11. For example, in freedom-of-speech cases, it will fall to the state, once an applicant has demonstrated that there has been an interference with his Article 10 rights, to prove the necessity for the interference with reference to reasons that are considered by the Court to be both relevant and sufficient.321 However, the Court has refused to reverse the burden of proof in a discrimination case under Article 14 where the authorities had not carried out an adequate investigation into the question of whether unlawful killings were racially motivated on the basis that such an approach went too far, since it would require the authorities to disprove a subjective attitude by the person concerned.322 Nevertheless, the Court recognizes that discrimination is notoriously difficult to prove and that less strict evidential rules may be justified in certain circumstances.323

The standard of proof is that of ‘beyond reasonable doubt’. This is regularly employed by the Court in allegations of violations of Articles 2 and 3. However, in the case of Merabishvili v Georgia, the Court examined this standard as part of its ‘usual approach to proof’, implying that it has a cross-Article application.324 For the Court, such proof may follow ‘from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact’, as well as from the conduct of the parties when evidence is being taken.325 A reasonable doubt is a doubt for which reasons can be drawn from the facts presented and not a doubt raised on the basis of a mere theoretical possibility or to avoid a disagreeable conclusion.326 It has been stressed that it has never been the Court’s purpose to borrow the approach of the national systems which use that standard and that the Court’s role is not to establish criminal or civil liability, but to determine the contracting parties’ responsibility under the Convention.327 Thus, the fact that police officers may have been acquitted in criminal proceedings of the use of unlawful force cannot be decisive of the issue that arises under the Convention, namely whether the force used has been more than absolutely necessary in the circumstances.328 Accordingly, the standard does not correspond with the high criminal law standard that is employed in many legal systems, although it does nevertheless connote a high standard of proof as regards the facts that are alleged to have occurred. The standard has been criticized in various dissenting opinions as inadequate, possibly illogical, and unworkable when trying to determine whether a person in custody has been ill-treated.329 In such instances, however, it remains open to the Court to draw inferences from the failure of the government to provide adequate explanation, based on the conclusions of an effective domestic investigation, for injuries which the applicant sustained in detention.330

VIII.p. 159 Pilot Judgments

A pilot judgment331 is the Court’s response to the recurring problem of repetitive or ‘clone cases’, ie large numbers of cases raising essentially the same issue of which there are some 47,500 in the Court’s current docket.332 In the 1980s, the problem was reflected in the large number of cases brought against Italy concerning length of procedure. Since the establishment of the new Court in 1998, a large volume of repetitive cases has been brought against many different countries concerning not only length of civil and criminal proceedings but many other issues, including non-enforcement of domestic judgments, delays in payment following expropriation, and access to property in northern Cyprus.

The Court itself proposed the introduction of a ‘pilot judgment procedure’ in cases which were related to a systemic or structural problem in the country concerned.333 It was envisaged that the pilot judgment would give rise to an accelerated execution procedure before the Committee of Ministers and would impose on the state an obligation to address the structural problem and thereby provide domestic redress in respect of applications pending in Strasbourg. In the Court’s view, applicants will gain redress more speedily if an effective remedy is established at national level than if their cases are processed on an individual basis by the Court.334

The ‘pilot judgment procedure’ was applied for the first time in the case of Broniowski v Poland.335 In the operative part of the judgment, the Court held that the violation of Article 1 of Protocol 1 found in the case originated ‘in a systemic problem connected with the malfunctioning of domestic legislation and practice caused by the failure to set up an effective mechanism to implement the “right to credit” of Bug River claimants’. The Court enjoined the state to secure the implementation of the property right in question in respect not only of the applicant but also of the remaining Bug River claimants. In the judgment, the Court had noted that some 80,000 people were affected by the systemic problem. Following a friendly settlement concerning the setting up of a compensation scheme for all those affected, the case was eventually struck off the Court’s list. The compensation scheme later set up by the Polish authorities was subsequently accepted by the Court as providing a remedy which satisfied the principal Broniowski judgment.336 A further pilot judgment was adopted by the Court in the case of Hutten-Czapska v Poland,337 which concerned failure of Polish law to secure a ‘decent profit’ for landlords. In its judgment on the merits, the Grand Chamber held that ‘in order to put an end to the systemic violation identified in the present case, the respondent government must through appropriate legal and/or other measures, secure in its domestic legal order a mechanism maintaining a fair balance between the interests of landlords and the general interests of the community, in p. 160accordance with the standards of protection of property rights under the Convention’. This case was also struck out following a friendly settlement concerning the general measures adopted by Poland in response to the Court’s judgment.338

Following Broniowski and Hutten-Czapska, the Court has dealt with a variety of issues under the pilot judgment procedure.

Moreover, the category of pilot judgments also includes judgments which stop short of requiring the state to introduce corrective measures in the operative part of the judgment but nevertheless relate to structural problems and propose that measures be taken by the state to address them.339

The pilot judgment procedure has been endorsed by the Committee of Ministers,340 the Woolf Report,341 and the Wise Persons Group,342 as well as in the intergovernmental conferences on reform.343 The Court itself set up a sub-committee to examine how the procedure could best be utilized in the future, as well as the types of cases that might be appropriately dealt with by this procedure. They have most significantly concerned specific structural problems arising in the area of property rights. The question arises whether such judgments can also be used to deal with common endemic problems in many contracting parties, such as non-enforcement of judgments or cases concerning length of civil and criminal procedure, detention on remand, and prison conditions. Some commentators have suggested that a measure of circumspection in resorting to the procedure may be desirable and that an inflation of pilot judgments would be counter-productive.344 This is undoubtedly the case, since such a judgment requires the state to remedy often deeply-entrenched legal or socio-economic problems in its national system that may not admit of an easy legislative resolution.345 While the procedure offers a useful tool to bring about such structural change, an excessive recourse to the procedure could lead to judgments that were not complied with. This, in turn, would undermine the usefulness of the procedure. Nevertheless, there has been a general acceptance by governments of the utility of the procedure as a sensible method of dealing with repetitive complaints and only one government so far has actually challenged the legal basis of such a procedure under the Convention.346

The pilot judgment procedure reflects the view of the Court that its role should not be to act as a claims commission examining large numbers of repetitive cases and, further, that states must assume their responsibilities to tackle the root problems underlying repetitive complaints.347 The procedure is ultimately in the hands of the Committee of Ministers, since it is the successful enforcement of such judgments that will validate the p. 161Court’s continued recourse to them.348 The same message flows from Burmych and Others v Ukraine,349 concerning a follow-up to the unsuccessful pilot judgment procedure in Yuriy Nikolayevich Ivanov v Ukraine,350 in which the Grand Chamber stressed that the Court had discharged its function under Article 19 of the Convention by resolving the legal issue (non-enforcement of court judgments) pertaining in the Ivanov case. Further issues arising out of this ruling, namely the provision of redress for victims of the systemic violation of the Convention found in Ivanov, is a question of execution under Article 46 of the Convention, which is in the hands of the Committee of Ministers.

IX. Third-Party Interventions

Article 36 of the Convention makes provision for third parties to intervene in proceedings.351 Indeed, this is a frequent occurrence in the Court’s higher profile cases where there may be points of general importance at stake. According to Rule 44 of the Rules of Court, requests should be submitted within 12 weeks of the communication of an application to the respondent government.352 In Article 36, two types of intervention must be distinguished. First, when the application is brought by the national of one state against another contracting party, the state of which the applicant is a national has the right to intervene under Article 36(1), reflecting the traditional right of diplomatic protection.353 Second, under Article 36(2), the President of the Court may, in the interests of the proper administration of justice, invite or grant leave to any other contracting party or any other person concerned to submit written comments.

In respect of the first, this right also extends to appearing before the Court in oral hearings. Accordingly, states in this category are in a considerably stronger legal position than an NGO seeking leave to intervene. They can, for example, insist on having access to the entire case file. However, the Court has decided that they cannot insist on the right to appoint an ad hoc judge since they are not parties to the case stricto sensu; nor do they have a right to comment on the terms of any friendly settlement that has been reached, although they will usually be sent the settlement for information. It must be stressed that this is a right but not a duty, and states can and do decline to take part in the proceedings, especially when there is no wider principle at stake or the national link between applicant and state is wholly incidental.354

p. 162In relation to the latter type (interventions that require leave from the Court), one can further distinguish three types of interveners: first, interventions by governments other than the respondent government that have a specific interest in the subject matter of the case; second, persons other than the applicant who are directly implicated in the facts of the case may also intervene with leave;355 finally, and most commonly, NGOs with particular experience in the area of law or practice being examined (such as Amnesty International, the Advice on Individual Rights in Europe (AIRE) Centre, International Commission of Jurists, Redress, formerly Interights) frequently seek (and are granted) leave to intervene.

In respect of the first category, governments asserting an interest will almost always be given leave to intervene.356 This frequently occurs in cases where a point of general public international law is being considered such as in Behrami and Saramati, discussed in section I.5, where five states intervened.357 It has also occurred when the issue under consideration will have implications for their legal system or immigration policy.358 Equally, in Üner v Netherlands,359 concerning the deportation of a settled immigrant with young children with a series of criminal convictions, the German Government intervened, given the similarity of its policy on deportation to that of the Dutch Government. In Perinçek v Switzerland,360 the Armenian Government intervened in a case concerning the ‘Armenian genocide denial’ by a Turkish national in Switzerland. It is extremely unusual for a p. 163contracting party whose nationals are not applicants to intervene in support of the finding of a violation, though it has occurred in one case involving the death of a journalist in northern Cyprus.361

With regard to the second category, interventions by persons directly concerned or affected by the facts, there are fewer examples. In T v UK and V v UK,362 concerning the right to a fair trial of two boys who had been convicted of murdering a toddler, the parents of the victim were given leave to intervene. In Perna v Italy,363 where the applicant had been convicted of defaming a judge, the judge was also given leave to intervene.

More common is the third category, where an interested party intervenes because of the legal importance of a case in an area where it has special expertise. NGOs are frequent interveners on this basis.364 Frequently, such interventions will involve comparative law studies across different states, which may point to a practice in the respondent state that is out of step with that in other contracting parties.

In general, the Court has a liberal policy as regards interventions generally and leave to intervene will normally be granted by the President if the party submits a request outlining the nature of the proposed intervention and the reasons why it will further the proper administration of justice (Rule 44). If the case is subsequently heard by the Grand Chamber, it is not necessary to ask for permission a second time. There are, however, limitations attached to any authorization, since the intervener is not considered as a party. It is usually stipulated in the letter permitting intervention that it should not address directly the admissibility or merits of the case, but provide information based on the expertise or experience of the interveners.365 Interventions which do not conform to this condition may be refused or only accepted in part (Rule 44(4)). Requests may also be refused when they are submitted out of time or too close to the hearing of the case or where the Court has already granted permission to other organizations. The Court has on occasion requested interveners to group their submissions.366 Because of the increasing interest of NGOs in the work of the Court, leading to a greater number of requests, the Court may refuse permission if it considers that it has a sufficient number of interveners. On moral or sensitive social issues, the Court is careful to grant permission to organizations on different sides of the issue if requests have been made, as, for example, in the Pretty case discussed earlier in this section,367 or A, B and C v Ireland,368 which concerned an abortion issue. Finally, it should be noted that intervention by organizations is usually limited to written submissions. The Court would not normally grant permission for an intervener to appear before it, although in exceptional situations where the intervener has a direct interest in the outcome of the case this has been authorized (as was the case in the T and V cases). p. 164The Rules of Court also provide that the President may invite or grant leave to a third party to participate in an investigative measure, such as a fact-finding (Rule A1(6) of the Annex to the Rules of Court concerning investigations).369 The Court is, however, strict about the length of third-party interventions, normally restricting them to ten pages, excluding appendices. The respondent government and applicant are always given an opportunity to comment on the third party’s observations, as they may open up new lines of argument to be addressed by the parties.370

Though it is unusual, the Court may also invite interventions of its own motion. This occurred in Young, James and Webster v UK,371 where the Court of its own motion invited the TUC to submit comments and to appear as a witness on certain factual matters, which it did, albeit in support of the argument that the closed shop was compatible with the Convention. It also requested the UN to intervene in Behrami and Saramati v France, Germany and Norway,372 which concerned the actions of a UN peacekeeping force.

4. Article 41: Just Satisfaction

The case law under Article 41 (which replaces Article 50)373 is characterized by the lack of a consistently applied law of damages at the level of detail which one would find in national systems and which permit specific calculations to be made on the basis of precedent for injury, loss of life, unlawful imprisonment, and loss of property. The Court applies a series of general principles—as set out later in this section—to the facts of each case when a violation has been found.374 Given the existence of five Sections and a Grand Chamber all taking decisions on just satisfaction, problems of consistency of awards have inevitably crept in, especially in the area of non-pecuniary awards. The Court’s response has been to set up a system within the Registry to advise the judicial formations on the application of Article 41 and to provide information on the appropriate level of awards in similar cases. Moreover, the Registry has prepared a series of detailed tables setting out a method of calculation of non-pecuniary damage in respect of each Article of the Convention. The concern was not only to ensure consistency of awards as between the Court’s five Sections, but also to ensure consistency as between the different Articles of the Convention that have been violated since it had been observed that on occasions the awards for very serious breaches (loss of life or torture) were lower than awards for lesser breaches (loss of liberty or freedom of expression). The approach in respect of each Article is to indicate p. 165a minimum award and a maximum, bearing in mind the type of violation found. Thus, for example, the award for a substantive breach of Articles 2 and 3 will be higher than the award for a procedural violation of these provisions. The seriousness of the facts, particularly where breaches of Articles 2 and 3 are concerned, and the degree of relationship between the applicant and the victim are also factors to take into account. The resulting amounts awarded under each Article will also be adjusted with reference to adjustment tables to take into account the standard of living in the country. Thus, awards concerning countries such as Switzerland or the UK will be considerably higher than awards concerning poorer countries such as Albania or Bulgaria. The Court has also adopted tables in respect of non-pecuniary awards concerning length of judicial proceedings for breaches of Article 6(1), which take into account the length of the proceedings and the number of levels of jurisdiction with possibilities for increase and decrease having regard to the subject matter of the proceedings and the number of applicants.375 A similar table has also been drawn up in respect of complaints concerning the non-enforcement of domestic judgments. It should be stressed that the Court considers that the purpose of the tables is to provide guidance for the different judicial formations. The tables are thus not written in stone. Moreover, the award of compensation remains a discretionary one and the Court may consider that the finding of a breach is sufficient vindication of the applicant’s rights on the facts of the particular case. The tables mentioned earlier in this section are also internal documents for the use of the Court with a view to ensuring greater consistency in awards. They have not yet been made public, although government agents have called on the Court to do so in order to guide national courts when they make awards for breaches of Convention rights and generally make the sums awarded more predictable.376 To date, the Court has been reluctant to do so on the basis that it risks adding a new level of dispute between the parties if the sums awarded are not seen as conforming to the tables—something that is perfectly possible given the inherent discretionary nature of the award coupled with the Court’s appreciation of the seriousness of the facts. The matter is the subject of continuing discussion within the Court. In any event, it is open to the parties to study the Court’s awards in its copious case law concerning each jurisdiction in order to determine the level of damages, if any, that might be awarded in respect of specific breaches concerning a particular country.

Despite the wording of Article 41 (that the Court shall afford just satisfaction ‘if the internal law of the High Contracting Party concerned allows only partial reparation’), the Court does not normally require an applicant who has won his case to avail of national procedures to secure compensation, even if these were available. The Court has indicated that it would not be compatible with the effective protection of human rights to require an applicant who has already exhausted domestic remedies to initiate further proceedings.377 Nor does the fact that the applicant might later obtain damages before a domestic court prevent the Court p. 166from making an award.378 The Court will not award punitive damages, but it has shown itself willing to take into account elements that militate in favour of an enhanced award.379

When it finds one or more violations of the Convention, it will, in the same judgment, consider what, if any, just satisfaction to award the applicant under Article 41 of the Convention. The award of just satisfaction, as previously indicated, is not a right when a violation has been found. It is a matter entirely within the Court’s discretion. Part of the explanation for this is that Article 46 requires states to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. A judgment in which the Court finds a breach imposes on the respondent state a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress, so far as possible, its effects.380 Hence, the purpose of awarding sums by way of just satisfaction is to provide reparation solely for damage suffered by those concerned to the extent that such events constitute a consequence of the violation that cannot otherwise be remedied.381 Thus, the Court may, and frequently does, decide to hold that the finding of a violation is, in itself, sufficient vindication of the applicant’s rights, and to limit its award to costs and expenses. In a minority of cases and in accordance with Rule 75 of the Rules of Court, the Court may decide that the question of just satisfaction is not ready for decision and reserve its decision in whole or in part on the question. This occurs most frequently in cases concerning Article 1 of Protocol 1, when the calculation of pecuniary loss may be complex and require further deliberation.382 When it does so, and when the matter is ready for decision (usually after further observations from the parties), it will render a separate judgment if the parties have not managed to settle the issue themselves. If there is a settlement, the Court will verify the ‘equitable nature’ of the agreement and, if satisfied, strike the case out of its list.383 However, a friendly settlement agreement under Article 41 cannot contain an indication that the payment has been made ‘ex gratia’ as that would be contrary to the fact that a violation of the Convention has been found in the principal judgment.384 It has been the practice of the Court occasionally to reserve Article 41 when it indicates general measures under Article 46.385

The Court makes awards under three headings: costs and expenses; awards for pecuniary damage; and awards for non-pecuniary damage. Since 2002, the awards have all been made in euros, to enable the Court to facilitate consistency between different countries. p. 167Awards are usually payable to the applicant, although the Court may provide that they be held for the applicant’s benefit where minors or mentally incapacitated persons are involved, or where the applicant can no longer be located.386 It may also in certain circumstances indicate particular individual or general measures contracting parties must take in order to remedy the violation found,387 although in general these usually stop short of specific consequential measures, for example that the state is required to take penal or administrative action in regard to the persons responsible for the infringement.388 In the operative provisions of the judgment, the Court will provide that just satisfaction is to be paid within three months, failing which default interest is payable at a particular rate.

The process of considering the application of Article 41 will start when the Court sends the government’s observations to the applicant’s legal representative for comment. At the same time, the representative will be invited to submit his claims for just satisfaction. Where the joint procedure is used under Article 29(3) (ie in most cases), the Article 41 claims must be submitted with the observations in reply on both the admissibility and merits of the application. The representative will be reminded of Rule 60 of the Rules of Court, which provides that an applicant who wishes to obtain an award of just satisfaction under Article 41 must make a specific claim to that effect. The same rule states that the applicant must submit itemized particulars of all claims, together with any relevant supporting documents.389 The claims are then sent to the respondent government for comment. The procedure in WECL cases is set out in section 2.VIII, p 129.

As a rule, the Court will not make an award of its own motion where no claim has been made or where a claim is made out of time.390 However, in keeping with the principle of equity, which involves flexibility and an objective consideration of what is just, fair, and reasonable in the circumstances of a case, the Court may make award of non-pecuniary damage even in the absence of a properly made claim if a number of ‘prerequisites’ have been met and if there are ‘compelling’ reasons to do so. The ‘prerequisites’ in this context designate the existence of indications unequivocally showing that an applicant expressed a wish to obtain monetary compensation and that there is a causal link between the violation found and the non-material harm arising from it. The ‘compelling’ reasons will depend, first, on the particular gravity and impact of the violation found, as well as the overall context of the case; and, second, on the unavailability or partial availability of adequate reparation at domestic level.391

I. Costs and Expenses

As regards costs and expenses, the Court is normally strict with representatives and frequently finds that they have either failed to itemize their costs properly, or that the number p. 168of hours billed is excessive, or that the hourly rate is excessive. In many instances, the Court also rejects the claims for lawyers’ fees if applicants fail to provide a contract or other relevant documents showing that they are actually under a legal obligation to pay the fees charged by their representatives.392 Time limits for the submission of claims should be respected and the Court will not usually grant extensions of time limits in respect of Article 41 submissions unless good cause is shown for the delay. As it frequently states, an applicant is entitled to reimbursement of his costs and expenses only insofar as it has been shown that these relate to the violation(s) found, have been actually and necessarily incurred, and are reasonable as to quantum.393 Any sums paid under the Court’s legal aid scheme will be deducted from the award. Nonetheless, the costs of a full legal team can be claimed provided each of the representatives’ costs are within these bounds and are properly itemized. Thus, for a complex case there will be no bar on claiming the costs of an instructing solicitor and both senior and junior counsel, although this must not involve an unnecessary duplication of work.394 Additionally, the Court may award a lump sum to the applicant, which may prove problematic when this is a percentage of what is claimed and there are several legal representatives seeking to recover their fees. The Court is not bound by the scale of fees applied in national law, but these may be used by the Court as a benchmark for its calculation. Costs will not be awarded where a lawyer has acted free of charge. The applicant must have paid them or be bound to pay them pursuant to a legal or contractual obligation. Expenses will be considered under the same rubric, save for when the applicant obtains leave to represent himself, in which case he may claim expenses but not costs for the time they have spent working on the case.395 Expenses incurred in respect of translation costs, photocopies, and the use of expert testimony may be recoverable if such expenses have been actually and reasonably incurred.396 It is, in principle, open to applicants to seek recovery of costs and expenses incurred before the domestic courts; the Court will only make such an award where these proceedings were concerned with preventing or seeking redress for the alleged violation of the Convention.397 Where the Court finds that there is only a violation as regards part of the case presented, this may result in the Court reducing the amount awarded for costs and expenses.398 Finally, Rule 43(4) provides that an award of costs may be made by the Court in respect of an application that has been struck out. This provision was added to the Rules in recognition of the work done by a legal representative in a case which may be struck out because the proceedings have led to some form of redress being given.399

II.p. 169 Pecuniary and Non-Pecuniary Damage

Pecuniary damage encompasses losses of a pecuniary nature that are directly linked to the violation found.400 This may include, for example, loss of earnings or reduction in the value of property, fines, and taxes imposed or inadequate levels of compensation for expropriated property. For an award of pecuniary damage to be made, the applicant must demonstrate, to the Court’s satisfaction, that there is causal link between the violation and any financial loss alleged. This is seen as a matter of proof rather than speculation. It is easily established when there has been a taking of property, but significantly more difficult in other contexts. For example, a finding of a violation of Article 6 in the context of a criminal trial will not allow the applicant to claim lost earnings for any time he has spent in prison. However, the Court has been prepared to compensate for lost earnings in other situations, notably in right-to-life cases when the applicant is the widow or another dependant of the deceased,401 or where there have been lost earnings flowing from the Convention breach.402 In Oyal v Turkey (negligence by medical staff leading to the applicant contracting AIDS), the Court awarded the applicant a substantial sum for both pecuniary and non-pecuniary damage in addition to full and free medical care for the rest of the applicant’s life.403

Claims for pecuniary damage will normally arise in cases involving property under Article 1 of Protocol 1.404 Where the Court has found a violation, this can often give rise to complex calculations of how much to award, especially when the property in question is of significant value.405 The amount awarded in these cases is rarely the market value. In the Former King of Greece case, the Court found that less than full compensation could be justified where the taking of property had been intended to complete ‘such fundamental changes of a country’s constitutional system as the transition from monarchy to republic’.406 However, the Court will normally order full compensation in the face of unlawful dispossession or de facto expropriation, as in the case of Guiso-Gallisay v Italy, where the authorities commenced construction on the applicant’s land without formal expropriation.407 The Court, in a change of its case law, clarified that the amount payable in compensation was the value of the property at the moment of its loss—adjusted by inflation and increased by interest up to the date of judgment. In some instances, where the complexity of a situation so requires, the Court may indicate a set of specific criteria for the award of pecuniary damage in future cases.408

In deciding how much to award, the Court will follow a number of steps. First, it will decide whether restitutio in integrum is possible. If it is not or if national law only allows partial reparation, the Court will consider making an award.409 In property cases, it will p. 170then consider whether the parties can agree on the value of the property and, if so, whether they can agree to a settlement of the matter. If they cannot agree to either, the Court may place the valuation in the hands of an independent expert and then, basing itself on the expert’s report, award pecuniary damages on the usual equitable basis.410

The Court will award non-pecuniary damages (or moral damages) on the basis of equitable considerations more readily than it awards pecuniary damages, although there is usually little explanation as to how it reaches the sums awarded. This head of damage covers such matters as pain and suffering, anguish and distress, inconvenience, and loss of opportunity.411 For the most part, the amount awarded under this head will be in proportion to the seriousness of the violation (or violations) and its effect on the applicant. The highest awards will therefore tend to be made in relation to violations of Articles 2 and 3 of the Convention.412 In the context of conditions of detention, in Muršić v Croatia the Grand Chamber took two elements into account when determining the extent of non-pecuniary damage, namely the length of stay in inadequate conditions of detention, and the existence of efforts made by the domestic authorities to alleviate the problem of overcrowding.413 In the context of the case in question, the application of these criteria resulted in the reduction of the non-pecuniary award in comparison to some previous cases on conditions of detention. Moreover, the standard award of damages may be reduced in the case of a long delay for some of the applicants in filing the application with the Court.414

However, given that the Court always rules on an equitable basis and that there is some adjustment according to the cost of living in each member state, past awards are not always reliable predictors of future awards. This is especially so when the violation turns on the particular facts of the application, as is frequently the case with Articles 8, 9, 10, and 11 of the Convention. Nonetheless, thanks to the Court’s internal tables, there is greater consistency in such awards as regards most repetitive cases, whether they are particular types of applications from one country (such as non-enforcement of court judgments) or the Court’s most common type of application, the length of civil or criminal proceedings. For instance, for the latter, the Court will normally make an award based on the number of years the proceedings lasted, as against the number of instances (levels of jurisdiction) before which they took place.

As to who can claim non-pecuniary damages, this now appears to be virtually commensurate with victim status under Article 34. The non-pecuniary damages can be claimed by physical and legal persons.415 It is always open to the Court to hold that the finding of p. 171a violation is sufficient just satisfaction.416 This has happened regularly in the context of the due process rights set out in Articles 5 and 6 of the Convention, where the Court has stated that it would not make an award on the speculative basis that the applicant would not have been convicted if he had had the benefit of the guarantees of Article 5 or 6 of the Convention.417 It will also take this approach when the focus of the application is having one’s rights vindicated rather than seeking damages per se.418 Moreover, the finding of a violation was considered as sufficient just satisfaction in a case in which there was a tenuous link between the non-pecuniary damage sustained by an applicant who died in the course of the proceedings before the Court and his secondary relatives (siblings, etc), who instead of him pursued the application before the Court.419 It is also open to the Court, in the exercise of its discretion, to decline to make an award on public policy grounds.420

The Court has also had to consider whether the sums of money it awards under Article 41 can be accompanied by orders or directions that the money should be freely enjoyed by the applicant without attachment or other consequences for the applicant’s existing financial situation. The matter first arose in Allenet de Ribemont v France,421 where the applicant asked that any sums awarded to him be free from attachment to avoid enforcement of an outstanding French civil judgment. The Court declined this request, holding that it had no jurisdiction to issue such an order to a state. In Velikova v Bulgaria,422 concerning the death of the applicant’s husband in police custody, the applicant requested the Court to order that there should be no negative consequences for her, such as reduction in social benefits due to her, as a result of the receipt of any non-pecuniary damages. The Court noted that it would be incongruous to award the applicant an amount in compensation for, inter alia, deprivation of life constituting a violation of Article 2 of the Convention if the state itself were then allowed to attach this amount. The purpose of compensation for non-pecuniary damage would inevitably be frustrated and the Article 41 system perverted if such a situation were to be deemed satisfactory. However, the Court again found it had no power to make such an order and left the matter to the discretion of the Bulgarian authorities.423

5.p. 172 Article 46

Under Article 46(1) the state party is according to the Court:

… under an obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to take individual and/or, if appropriate, general measures in its domestic legal order to put an end to the violation found by the Court and to redress the effects, the aim being to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded.424

The Court has in the past traditionally been reluctant to make ‘consequential orders’ in the form of directions or recommendations to the state to take a particular course of action.425 Thus, for example, in Ireland v UK,426 it refused the request by the Irish Government to order that criminal prosecutions be brought against those responsible for ill-treatment in breach of Article 3. On other occasions, it has rejected invitations to require the state to undertake that children will not be corporally punished or to take steps to prevent such breaches in the future.427 This approach was based on the view that the Court only possesses powers to make an award of compensation.

However, in response to criticism that the Court should give more guidance to the states and to the Committee of Ministers in its judgments as to what corrective measures would be appropriate in the light of any violations found, the Court may also in exceptional cases indicate under the rubric of Article 46 what would be the most appropriate individual and general measures needed to provide redress. The most common instance has been in expropriation cases, where the Court has given states the choice to return the property or to pay the value of it in compensation to the applicant.428 In Assanidze v Georgia,429 the Court, having found the applicant’s detention to be illegal, held that Georgia had to secure his release at the earliest possible date. It was considered that the nature of the violation was such as to leave no real choice as to the measures required to remedy it. A similar direction was made in the case of Ilascu and Others v Moldova and Russia430 and Del Río Prada v Spain.431 Moreover, in Oleksandr Volkov v Ukraine, the Court ordered the applicant’s reinstatement as a judge.432 The directions in these cases were set out in the operative part of the judgment and were thus binding on the state.

It is now an established practice—although one that is exercised cautiously and in exceptional circumstances—for the Court to indicate general measures in judgments which reveal problems or gaps in legislation, administrative practices, and judicial remedies or a lack of other essential safeguards. Thus, it has indicated under Article 46 that the state is required to take general measures to remedy depreciation in compensation for expropriated property;433 to remove details of religious affiliation from identity cards;434 to eliminate p. 173structural problems of length of pre-trial detention;435 to remedy systemic defects in legislation on the restitution of land;436 to reform the system of judicial discipline,437 to give but a few examples. It also indicates what individual measures may be required. For example, that the state take all possible steps to obtain assurance from Iraqi authorities that applicants would not be subjected to the death penalty;438 that an independent investigation be carried out into the proportionality of the use of lethal force;439 that a disproportionate exclusion order be revoked;440 to secure the applicant’s reinstatement as a Supreme Court judge (in the operative part of the judgment).441

The Court has indicated in Khodorkovskiy v Russia442 that it will only issue such indications on an exceptional basis to put an end to a systemic problem, or a continuous situation in breach of the Convention, or to indicate the remedy required when the nature of the violation left no real choice. In that case, it was not prepared to request that an independent expert be allowed to examine the applicant’s prison conditions or that the authorities not keep him in a cage during criminal proceedings—judging that such requests did not fall into the categories in which indications would be made. It should be stressed that such indications are not binding, as such, on the state, unless they appear in the operative part of the Court’s judgment, as in Assanidze v Georgia443 or the Court’s pilot judgments.444 In most cases, they will appear in a part of the judgment devoted to Article 46 and will not appear in the operative part unless the judgment deals with an exceptional situation calling for immediate action.445 It still remains to the national authorities to determine how to give effect to the Court’s judgment when such non-binding suggestions are made.446 However, they give a clear indication to the Committee of Ministers of the steps that the Court considers to be legally appropriate to respond to the violation found and, as such, have become essential to the proper execution of the judgment.

As we have seen, the Court has gone even further in various pilot judgments.447 In Gurov v Moldova,448 the Court found the applicant’s Article 6 rights had been violated by the hearing of her civil claim by a tribunal that was not established by law (the term of office of one of the judges having expired). The Court noted the most appropriate form of relief would be to ensure that the applicant was granted in due course a re-hearing of the case by an independent and impartial tribunal, a possibility which existed in the domestic law. The Court was content, therefore, to make no award of damages and let the case take this course.449

p. 174The Court has stated that it does not have jurisdiction in general to order the re-opening of judicial proceedings.450 However, it has made an exception in criminal proceedings, and where it has found there to be an unfair trial it often indicates that the applicants be given a re-trial if they so request.451 It considers that this is the most effective way of remedying an unfair trial, although it has indicated there may be specific circumstances where such an option may not be feasible.452 However, once the proceedings are re-opened, the Court will intervene in the outcome of those proceedings only if the decisions of the domestic courts are arbitrary or manifestly unreasonable.453 The Court has not been prepared to order the quashing of criminal convictions.454 Where proceedings are still pending, the Court may make indications in respect of them. In Naime Doğan and Others v Turkey,455 after finding a violation of Article 6(1) in respect of the length of civil proceedings that were ongoing, the Court indicated that the subsequent expedition and resolution of those proceedings within the shortest possible period of time offered appropriate redress for the violation.

In L v Lithuania,456 concerning the finding of a violation of Article 8 due to the absence of domestic law allowing the applicant to complete gender reassignment surgery, the Court found that the state could satisfy pecuniary damage by the enactment of the legislation within three months of the judgment becoming final or, if that proved impossible, the state should finance the applicant’s surgery abroad. In this respect, the Court awarded the applicant €40,000 for pecuniary damage. In Oyal v Turkey,457 the Court found that there had been medical negligence resulting in the applicant contracting AIDS. It required the state in the operative part of the judgment to provide costly medical treatment to the applicant for life.

It is questionable whether Article 46 may be subject to the finding of a violation. In Emre v Switzerland (No 2),458 the Court found a violation of Article 8, taken together with Article 46 of the Convention, concerning the state’s failure to comply with the Court’s earlier judgment in that case by revoking an order for the applicant’s exclusion from the national territory, which the Court found to be disproportionate. The Court noted that the most natural means of executing its earlier judgment, and the one most closely corresponding to restitutio in integrum, would have been to revoke the exclusion order with immediate effect, which had not been done at the domestic level. However, this finding in Emre remains an isolated example. The Court subsequently sought to distance itself from it by indicating that it was questionable whether allegations of a breach of Article 46 could be asserted in proceedings originating in an individual application. The Court now rather prefers to examine whether measures taken by a respondent state in execution of one of its judgments are compatible with the applicable substantive clauses of the Convention.459

p. 175Non-compliance with the Court’s judgment may also give rise to the infringement procedure under Article 46(4). Under that provision,460 the Committee of Ministers may refer to the Court the question whether a state has failed to fulfil its obligations under Article 46(1) in cases where the Committee considers that the state in question refuses to abide by a final judgment of the Court in a case to which it is a party. If the Court finds that the state has failed to comply with its obligations, it refers the case to the Committee of Ministers for the consideration of the further measures to be taken. If the Court finds that the Article 46 obligations have been complied with by the state, the Committee of Ministers must close the examination of the case (Article 46(5)).

The infringement procedure was introduced in the Convention system by Protocol 14, discussed further in section 6.I.461 The Explanatory report to Protocol 14 makes it clear that the request for interpretation should be used where difficulties arise on issues of interpretation of the judgment and not to examine the measures taken by a state in compliance with the judgment. It is also clear that infringement proceedings should only be taken in exceptional circumstances. While it increases the powers available to the Committee where there has been non-compliance, it is doubted that transferring what is essentially a political problem back to the Court will help resolve matters. It may, however, buy time for the political issues to be resolved amicably. Indeed, in the only case so far examined under that procedure, analysed in detail below, the very institution of the infringement proceedings leads to a de facto execution of the Court’s judgment. At the moment, another infringement procedure is pending before the Court in the case of Kavala v Turkey.462

The first above-mentioned case referred to the Court under the infringement procedure concerned the execution of the Court’s judgment in Ilgar Mammadov v Azerbaijan.463 That judgment concerned the finding of a violation of Article 5, taken alone and in conjunction with Article 18, in relation to the criminal charges brought against Mr Mammadov (a political opposition activist in Azerbaijan) and his subsequent pre-trial detention. The Court found, in particular, that Mr Mammadov had been arrested and detained in the absence of any reasonable suspicion that he had committed an offence and that the actual purpose of the impugned measures had been to silence or punish him for his political activism. In the execution process, the Committee of Ministers insisted on the immediate release of Mr Mammadov from detention. However, the Azerbaijani authorities refused to do that relying, in particular, on the fact that Mr Mammadov had in the meantime been convicted, which they considered to be a new legal basis for his deprivation of liberty.464 Given that a standstill had been reached in the negotiations with the Azerbaijani Government to find the solution to execute the Court’s judgment, at its 1302nd Human Rights meeting p. 176(5–7 December 2017), the Committee of Ministers adopted an interim resolution triggering the infringement procedure under Article 46(4). Subsequently, after the procedure had already been instituted, Mr Mammadov was released from detention and his case was finally decided at the domestic level by the Supreme Court. The sentence he was given corresponded to the time he had already spent in detention so it was considered to be served.465 Nevertheless, despite this development, and in the absence of a withdrawal of the request by the Committee of Ministers, the Court decided to proceed with the infringement proceedings.

In its decision, the Court explained that the infringement procedure was not intended to upset the fundamental institutional balance between the Court and the Committee of Ministers in the exercise of the latter’s role when executing the Court’s judgment. However, in the context of the infringement procedure, it remains for the Court to make a definitive legal assessment of the question of compliance with its judgment. In this connection, the Court takes into account all aspects of the procedure before the Committee of Ministers, including the measures indicated by the Committee, but it conducts its own assessment having due regard to the various positions taken in the execution process. The Court also identifies the legal obligations flowing from its judgment, as well as the conclusions and spirit of that judgment with a view to determining whether the respondent state has failed to fulfil its obligations under Article 46. In the present case, examining it from the perspective of the circumstances existing at the moment when the infringement procedure had been instituted before it, the Court found that the failure of the government to ensure Mr Mammadov’s urgent release, as required in its final judgment in the first Ilgar Mammadov case, meant that Azerbaijan had failed to fulfil its obligation under Article 46 § 1 of the Convention.

6. Reform of the Court

The reform process466 began with the preparation of Protocol 14, which was designed to give the Court more tools to deal with its constantly increasing caseload. The failure of Russia to ratify the Protocol by 2009, having been opened for signature in 2004, led the then President of the Court (Jean-Paul Costa) to prepare a Memorandum drawing attention to the Court’s increasing difficulties (continuing increase in new cases, widening gap between decisions delivered and the number of incoming applications, the increase in repetitive complaints) and calling for the holding of an inter-governmental conference to take political decisions concerning the long-term future of the Court.467 At the Conference, the states were expected to outline how they saw the Court in 2020 and to indicate the amendments to the system that would, in consequence, be required. They were also invited to set out the short-to-medium-term proposals for change that did not require amendment of the Convention.468 The Conference took place at Interlaken (Switzerland) in 2010 and led to the adoption of the Interlaken Declaration, whereby the states set out for the first time an all-important road map for the reform process, leading towards the p. 177long-term effectiveness of the Convention system.469 The Conference reaffirmed the fundamental importance of the right of individual petition, called on the states to guarantee and implement the Convention at national level, and addressed a variety of crucial issues for the Court, such as the need for more effective filtering of cases, the problem of repetitive cases, the need to maintain the independence of judges and to preserve the impartiality and quality of the Court, the need for the supervision of judgments of the Court to be more effective, and a simplified procedure for amending the Convention (a Court Statute). The Conference also prepared an action plan requiring the Committee of Ministers to issue terms of reference in respect of specific proposals and to evaluate in the course of 2012–2015 the extent to which the implementation of Protocol 14 and the action plan had improved the situation of the Court.470

Four further Conferences on reform were held in Izmir (Turkey) in 2011, in Brighton (2012), in Brussels (2015), and in Copenhagen (2018), leading to the Izmir, Brighton, Brussels, and Copenhagen Declarations, which advanced the reform agenda in a more critical and often over-directive manner.471 These Conferences sustained and developed the process of reform begun at Interlaken, but also addressed additional issues of particular concern to the states, such as the increase in the number of interim measures and the need for the Court to deliver judgments that were clear and consistent and to observe the principle of subsidiarity. All these Declarations stressed the shared responsibility between the Court and the states to ensure the viability of the Convention system. So far, they have led to renewed support for the work of the Court and a determination to protect the effective functioning of what has been built up over the past 50 years. They have led to the drafting of and the giving of extra impetus to two important Protocols (15 and 16). They have also led to important changes within the Court itself.472

I. Protocol 14

Protocol 14 was the result of more than four years’ reflection by the Council of Europe’s Steering Committee for Human Rights on the need for urgent measures to be taken to assist the Court to carry out its functions in the light of the ever-increasing number of applications being brought to the Court.473 It has made important changes to the functioning of the Court to enable it to dispose more rapidly of clearly inadmissible and repetitive cases and to concentrate its resources on more deserving cases by the introduction of the single-judge procedure,474 the Committee of three judges empowered to deal with WECL cases,475 and a new inadmissibility criterion enabling the Court to reject cases where ‘the applicant has not suffered a significant disadvantage’.476

p. 178The Protocol also introduced a number of other significant changes to the Convention. It provided that judges will be elected for a single term of nine years and that they may not be re-elected;477 that at the request of the plenary Court, the Committee of Ministers may for a fixed period reduce the number of judges in a Chamber to five;478 that ad hoc judges shall be chosen by the President from a list of candidates submitted in advance by the contracting party;479 that the Court shall, in principle, decide on admissibility decisions and the merits in the same decision (apart from inter-state cases);480 that the Court may explore the possibility of friendly settlement at any stage of the proceedings; and that the resulting agreement shall be in the form of a decision the execution of which is to be supervised by the Committee of Ministers. The Protocol also confers a right on the Council of Europe Commissioner for Human Rights to submit written comments and take part in hearings481 and on the Committee of Ministers to submit a request to the Court for interpretation of a judgment (for the purpose of supervision of execution of judgments), as well as the possibility of initiating infringement proceedings in respect of a contracting party which refuses to abide by a final judgment. Finally, the Protocol provides that the EU may accede to the Convention.482

II. Protocol 15

Protocol 15 was drafted in the wake of the Brighton Declaration and gives effect to certain of its proposals.483 Its most important provision is to insert into the Preamble to the Convention a reference to the principles of subsidiarity and margin of appreciation. The Explanatory Report makes it clear that the reference is to the concept of the margin of appreciation as developed by the Court in its case law.484 The question arises as to the full future impact of this reference on the Court’s decision-making. It cannot be seen as a passing preambular reference which will have no effect. The Preamble to an international treaty is an important part of the treaty485 and the Court has already referred—although, for the moment, only sporadically—to this reference now inserted in the Convention preamble.486 It can be foreseen that this reference to the margin will be an important argument invoked by governments in future litigation challenging state actions or policies.487 The reference also suggests that the margin applies in respect of every Article in the Convention, whereas it is clear from the case law that it does not apply in certain key areas, such as Articles 2 and 3. It is also clear from the case law that the breadth of the margin varies according to the context of the case and the issues being examined.488 The provision p. 179in the Explanatory Report is thus important, since it provides a clear indication that the reference in the Preamble does not purport to add anything that has not been developed by the Court in its case law.

An important change was also made to the six-month rule which was reduced to four months.489 The Protocol also removes the veto of the parties over relinquishment,490 simplifies the new admissibility criterion in Article 35(3) by amending that provision,491 and amends Article 21 by providing that candidates for election shall be less than 65 ‘at the date by which the list has been requested by the Parliamentary Assembly’.492

III. Requests for Advisory Opinions (Protocol 16)

Provision is made in Protocol 16493 for the ‘highest courts and tribunals’ of a High Contracting Party to request the Court for an advisory opinion ‘on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the Protocols thereto’.494 This can only be done by the national court in the context of a case pending before it. Reasons shall be given for the request, and details of the legal and factual background of the pending case shall be provided.495 A panel of five judges of the Grand Chamber decides whether to accept the request.496 Reasons must be given if the Panel refuses. If accepted, it shall be dealt with by the Grand Chamber.497 The advisory opinion, for which reasons must be given, is communicated by the Court to the requesting court or tribunal and the respective High Contracting Party. It is not binding.498 The proceedings before the Court are not adversarial in nature, as in a contentious case, but nevertheless the parties in the domestic proceedings and the relevant contracting party are able to take part on an equal footing, and in the context of this procedure the Court accordingly applies Rule 44 of the Rules of Court concerning third-party interventions.499

The question of advisory opinions was discussed at length during the preparation of the Brighton Conference on the future of the Court, to which the Court contributed a p. 180detailed reflection paper.500 Advisory opinions had also been recommended in the Wise Persons Report.501 As indicated in the Preamble to the Protocol, its purpose is to create a framework for dialogue between the highest national courts and the European Court.502 The views expressed by the Court in this context, though not binding, would have ‘undeniable legal effects’, as the experience of the International Court of Justice and the Inter-American Court of Human Rights demonstrates. The practice of these courts shows that they draw upon their reasoning in advisory opinions in the same way as upon their case law in contentious cases. It also reflects the contribution to the development of the case law that an advisory opinion has the potential to make.503 As the Court has made clear in its Reflection Paper, the right of individual application to the Court would not be undermined and the individual would retain a right to file an application where the domestic court did not follow the non-binding opinion.504 This will undoubtedly create a certain pressure to follow the Court’s opinion.

Since the Protocol is an optional one, it remains to be seen how many states will eventually welcome this new form of dialogue.505 So far, the Court has given five advisory opinions under Protocol 16506 and one request for advisory opinion has been rejected by the panel of five judges.507 The Protocol 16 procedure essentially involves a heavy Grand Chamber process which is both time- and resource-consuming. At the same time, as noted by the Court in its first advisory opinion, the relevance of the whole procedure depends on the Court’s capacity to deliver an opinion ‘within as short a time frame as possible’. It remains to be seen whether the Court will be able to cope with the possibly increasing number of advisory opinion requests or whether some other forms of advising the domestic p. 181jurisdictions on the requirements of the Court’s case law should be envisaged. In this latter context, the sharing of the Court’s internal knowledge-management and knowledge-sharing system with the domestic jurisdictions and with the general public might reduce the need for advisory opinions. Moreover, the activities in the context of the cooperation through the Court’s Superior Court Network could produce the same effects.

7. The Future

The new Court has had to confront major challenges since it was set up in 1998.508 First, it had the difficult task of ensuring the continuity of the Convention system as it had been developed by the former Commission and Court for more than 40 years. Building on and consolidating the case law of the Convention institutions in such a manner that the Court retained the confidence of both the international legal community and the contracting parties was a daunting challenge for a newly restructured Court and one that has been increasingly called into question by the states throughout the recent reform process. They have openly (and often unfairly) challenged the Court for, inter alia, its failure to respect the principle of subsidiarity, its over-willingness to grant interim measures, its inconsistent application of admissibility criteria, and the consistency and clarity of its case law developments.509 The states have used the opportunity of reform to caution the Court that it risked forfeiting their support if it did nothing to address such shortcomings and sought to rebuild confidence by changing its approach to interpreting and applying the Convention. At the same time, the states parties have demonstrated their attachment to the right of individual petition, to the need for a more effective system of supervising the enforcement of Court judgments, to improving national measures to provide effective domestic remedies for human rights violations, and, most importantly, to the political and legal importance of the role played by the Court in today’s Europe. However, notwithstanding the critical edge to the reform conferences, the central question throughout this process was how to preserve and consolidate the outstanding achievements of the Court over the preceding decades and create a structure that could endure in both the short and long term. In the previous editions of this book, we identified three essential developments through which this can be done.

The first concerns the development of more effective procedures by the Court itself to enable it to deal with the vast number of cases in its case docket. The recent results, visible from the Court’s statistics, have been promising. The Court has constantly sought to make its procedures more efficient and has exhibited considerable ingenuity in doing so. It has developed the pilot judgment procedure as an effective legal technique for bringing about structural change and dealing with the difficult problem of repetitive or clone complaints. Where the contracting party is reluctant to introduce corrective measures, the Court is likely to explore the possibility of introducing a brief default judgment system enabling it to record violations in such cases. It has introduced a system for granting priority to certain categories of urgent or important cases to ensure that the important cases are dealt with more speedily than before.510 It has demonstrated convincingly how the single-judge procedure can be used to dismiss large numbers of cases with an economy of procedure that harnesses the decision-making capacity of most of the judges in the Court. p. 182It has exploited productively the three-judge committees empowered to give judgments in WECL cases and is constantly considering giving a broader definition to the notion of ‘well-established case law’. It has invented the unilateral declaration for rejecting cases where agreement to settle is unreasonably withheld by the applicant.511 In keeping with the advice of Lord Woolf, it has sought to impose greater discipline on the way in which applications are brought to the Court by requiring applicants to complete the application form as required by the rules of court (Rule 47), with the sanction of not dealing with the case in the event of non-compliance.512 This allowed the Court to considerably reduce its backlog, although the numbers are still high.513

The second development concerns the realization, based on the notion of shared responsibility between the states and the Court, that more needs to be done at national level to provide remedies for human rights violations and for developing the role of national human rights structures. The Interlaken, Izmir, Brighton, Brussels, and Copenhagen Declarations have devoted considerable space to stressing the importance of effective national measures as an obvious method of reducing the need for applicants to complain to Strasbourg.514 First among such measures is the effective implementation of Convention rights by national courts. This is clearly a long-term strategy which is unlikely to have much impact in the Court’s docket in the short term. However, the application of the Court’s case law by national courts and national judges on a routine basis is one of the fundamental goals of the Convention system and one that offers considerable promise as a method of enhancing the standard of human rights protection nationally and reducing the Court’s docket, in the both the long and short terms. There are some promising signs that states are willing to introduce improved domestic remedies. Turkey, for example, has introduced a remedy for length-of-proceedings complaints, as well as a general remedy before the Constitutional Court for alleged human rights violations. Both have been considered by the Court to be effective remedies to be exhausted.515 Bulgaria has also introduced effective remedies in respect of length of proceedings.516

The third development relates to the strengthening of the Court’s constitutional role, ie its role in providing authoritative and binding judgments on the major human rights issues of the day, and in this way consolidating and furthering developing the acquis conventionnel. It is clear from the reform process that the Court will continue to develop its role of individual supervision and that the right of individual petition will be safeguarded to facilitate this. However, important developments such as the introduction under Protocol 16 of a system of advisory opinions at the request of national courts will lead, gradually but surely, to the further growth and development of the Court’s constitutional role.517 p. 183This process, however, is not without challenges and the Court will have to ensure that the operation under the Protocol 16 system is effective and the least possible time- and resource-consuming. It must also be remembered that Convention principles as developed in the Court’s case law have not only been received into national law and practice, but have also guided the pace and direction of law reform in many areas of law, aided and abetted by national courts and external Council of Europe bodies such as the CPT, ECRI, the European Social Charter, the Venice Commission, and the European Commissioner for Human Rights. These impressive accomplishments of the Convention system can only be enhanced in the future by furthering the dialogue with national courts by way of advisory opinions and enabling individuals to bring complaints directly against the EU.

All three developments, coupled with the changes brought about by the Interlaken process, mark out the development of the Court for the foreseeable future. It can be safely predicted that new challenges (and controversial disagreements with the states) will emerge over the course of the next decade that will require further initiatives. One such was signalled during the drafting of the 2018 Copenhagen Declaration, prepared following a high-level conference on the Convention system in Copenhagen,518 which in its initial version gave rise to a debate and controversy over the language used on the issues of subsidiarity and engagements of the states parties to the Convention.519

It remains to be seen how these developments will interplay with the most recent developments of armed conflicts in Europe and with the cessation of Russia’s membership of the Council of Europe and status as a state party to the Convention. The loss of such an important country from the system will certainly not remain without effects on the system as a whole. The vital question is whether the Court, given the burdensome case docket that it is expected to bear, will be in a position during this period of intense change to continue to perform its function effectively as Europe’s leading human rights court. Following the blueprint for reform that has been developed by the states in the course of the reform process, it is certainly arguable that its prospects are better than they have been for some time. The question is, however, whether the current challenge to the Court’s legitimacy in the UK derails this process or strengthens it.

An important input to the future of the Court was brought about with adoption of the 2015 Steering Committee for Human Rights (CDDH) report.520 The report puts the functioning of the Court in the context of four overarching areas determining the longer term effectiveness and viability of the Convention system in general: national implementation of the Convention; the authority of the Court; the execution of judgments and their supervision; and the place of the Convention mechanism in the European and international legal order. Two aspects determining the authority of the Court are particularly emphasized: its caseload and the authority of its case law. With regard to the first aspect, the report underlines the necessity of clearing the backlog of non-repetitive pending cases, which requires the allocation of additional resources and more efficient working methods rather than the introduction of a major reform. However, the reduction of the backlog should not be done to the detriment of the quality of the Court’s examination of cases. As to the second aspect, the report stresses the importance of the right of individual application and compliance p. 184with the Court’s judgments. It also invites the Court to give clearer general interpretative guidance concerning Convention law when examining individual cases. In this respect, the importance of the principle of subsidiarity and the important role of national courts in applying the Convention law is emphasized. Finally, the report stresses the importance of ensuring the quality of the Court’s judges, which should be achieved through the relevant selection and election processes. The same is stressed for the selection of Registry staff.

The Court’s response to the CDDH report has generally been positive and receptive.521 A number of organizational reforms are constantly taking place and are being further considered within the Court with a view to addressing the CDDH’s suggestions. The challenges to the system nevertheless remain and it is to be seen whether in the longer term the Court will be able to maintain the progressive reduction of its backlog and, at the same time, preserve the quality and persuasiveness of its case law. Most importantly, however, the Convention system as a whole will need to demonstrate its robustness and capacity to survive the critical challenges flowing from the armed conflicts in Europe and the actual—or threatening—withdrawal of member states from the system. The unity with which the member states of the Council of Europe reacted to Russia’s invasion in Ukraine, and the expression of their unequivocal commitment to the Convention values, is a positive sign. However, it remains to be seen how this will translate into a concrete action ensuring the long-term sustainability and stability of the Convention system.

Notes

  • 1 After the expulsion of Russia from the Council of Europe on 16 March 2022, the organization has 46 member states, for a Europe of 700 million people. However, the Convention ceased to apply to Russia on 16 September 2022 and the Court retains a residual jurisdiction with respect to acts and omissions capable of giving rise to a violation of the Convention until that date. Thus, the reference to 800 million people is still, at least for some time, relevant as regards the Court. See further Ch 1, section 6, pp 28–30.

  • 2 Through the right of individual petition, the Convention system provides for a ‘direct impact’ of international human rights law; see further Cassel, 2 CJOIL 1 (2001) p 133.

  • 3 For the operation of the former Commission and Court of Human Rights, see Chs 22 and 24 of the first edition of this book.

  • 4 See, for an insider’s view of how the Court operates in practice with special reference to the role of the Court’s President, Costa, La Cour européenne des droits de l’homme: Des judges pour la liberté, 1st edn 2013 and 2nd edn 2017. Judge Costa was President of the Court from 2007 to 2011. On reform of the Court generally, see Wildhaber, The European Court of Human Rights 1998–2006: History, Achievements, Reform, 2006; also Benoît-Rohmer, 73 RTDH 3 (2008) and Reform of the European Human Rights System: Proceedings of the High-level Seminar, Oslo, 2004, Directorate General of Human Rights, Strasbourg: Council of Europe, 2004.

  • 5 At the end of 2021 there were 70,150 cases pending before a judicial formation. More than 50 per cent of those cases concerned the following four countries: Russia (24.2 per cent), Turkey (21.7 per cent), Ukraine (16.2 per cent), and Romania (8.1 per cent). Other high-count countries are: Italy (5.2 per cent), Poland (3.2 per cent), Azerbaijan (3 per cent), Serbia (2.6 per cent), Greece (2 per cent), and Armenia (1.9 per cent). Out of the 70,150 pending cases, 30,600 were allocated to the Grand Chamber or a Chamber; 31,850 to Committee (repetitive cases); and 7,700 to single-judge formation. For detailed statistical information on the work of the Court and types of cases brought, see the Court’s website, available at: http://www.echr.coe.int. For further statistical information on the caseload of the Convention institutions in early years, see ch 3 of the third edition of this book.

  • 6 For a description of Protocol 14, see section 6.I, pp 177–178.

  • 7 Since the setting up of the new Court, the number of cases has consistently increased. In 1999, 8,400 cases were allocated to a judicial formation; by 2008 the number had gone up to 49,816, rising to 65,200 in 2012. In 2011, the number of applications pending before a judicial formation achieved its peak, rising to 151,600. In the ensuing period, the Court managed to achieve a steep decrease in the stock of allocated applications, down to 64,850 pending cases in 2015. However, in 2016 both the number of applications allocated to a judicial formation increased (by 32 per cent compared with 2015) and the Court’s backlog (79,750 pending cases before a judicial formation). The high number of cases on the Court’s docket can be explained by the institutional and, at places, existential challenges to the democratic and rule-of-law orders of the three countries making up more than 50 per cent of the Court’s backlog (Russia, Turkey, and Ukraine; see n 5). For instance, in the entire 2015 in respect of Turkey, 2,210 cases were allocated to a judicial formation. Following the 2016 coup d’état attempt and a large-scale crackdown on those supposedly linked to the event, the number of cases in 2016 reached 8,307, and for the period between January and July 2017 a total of 16,568 cases has been allocated to a judicial formation. The decrease in the pending cases that occurred in the second part of 2017 is related to the fact that a number of cases were repatriated to the national system due to a non-exhaustion of a new domestic remedy (see, eg, on the introduction of new remedies in Turkey following the coup d’état attempt, Çatal v Turkey No 2873/17 (2017) DA, and Köksal v Turkey No 70478/16 (2017) DA or following a strike out (primarily of the more than 12,000 post-Ivanov cases in the Burmych and Others v Ukraine Nos 46852/13 et al (2017) GC case). More recently, in Turan and Others v Turkey Nos 75805/16 et al (2021), the Court processed in a single judgment 427 cases by focusing on a single aspect of the cases (pre-trial detention of judges suspected of membership of an illegal organization following the coup d’état attempt) and deciding that, as a matter of judicial policy, it would not examine the remaining complaint raised in the individual applications).

  • 8 Final Report of the Group of Wise Persons to the Committee of Ministers, Council of Europe, November 2006 (available at: http://www.echr.coe.int). See also Future Developments of the European Court of Human Rights in the Light of the Wise Persons Report: proceedings of the colloquy, San Marino, 22–23 March, Council of Europe, 2007.

  • 9 See section 6, pp 176–179 on reform of the Court.

  • 10 For details of the current composition of the Court, see the Court’s website, available at: http://www.echr.coe.int.

  • 11 In April 2022, 15 judges were women.

  • 12 See section 6.I, pp 177–178 on Protocol 14.

  • 13 Article 23(6) of the Convention. There is no provision or procedure for the formal impeachment of sitting judges. The matter is instead regulated by Article 24 of the Convention and Rule 7 of the Rules of Court, which allow for dismissal by a two-thirds majority of the plenary Court. It has never happened.

  • 14 On this point and the election of judges in general, see Hedigan, in Kohen, ed, Liber Amicorum Lucius Caflisch, 2007, pp 235–253. See further Krüger, 8 RUDH (1996); Valticos, in Liber Amicorum M-A Eissen, 1995; Carrillo-Salcedo, 1 RUDH (1997); and ‘Judicial Independence: The Law and Practice of Appointments to the European Court of Human Rights’ Interights, May 2003.

  • 15 This modification aims to enable highly qualified judges to serve the full nine-year term of office and thereby reinforce the consistency of the membership of the Court.

  • 16 For the judges’ curricula vitae, see http://www.echr.coe.int.

  • 17 For the text, see Rule 3, Rules of Court.

  • 18 Resolution on Judicial Ethics, Adopted by the Plenary Court on 21 June 2021. Available on the Court’s internet site (http://www.echr.coe.int).

  • 19 ETS 162. In force 1998.

  • 20 Article 2; also Committee of Ministers’ Resolution ‘On the Status and Conditions of Service of Judges of the European Court of Human Rights and of the Commissioner of Human Rights’ (2009) 5, Article 2.

  • 21 In a recent (and second ever) Decision on a request for the waiver of immunity of the husband of a sitting judge, when referring to his immunity the Court used the formulation of an immunity that the husband ‘derives from the immunity of his spouse’ (Decision on request from the Ukrainian authorities for the waiver of immunity of Judge Yudkivska’s spouse; see Court press release 8 July 2020). It is therefore more precise to talk about a derivative and not self-standing immunity when discussing the immunities of spouses and minor children.

  • 22 Articles 1 and 3.

  • 23 Article 3. Article 5 extends the privileges and immunities to the Registrar and Deputy Registrar of the Court.

  • 24 Article 6. Official correspondence and other communications of the Court, judges, or the registry may not be held up or subjected to censorship; Article 6(2).

  • 25 The Court rejected a request from the Romanian Government to waive the immunity of Judge Birsan but allowed the request to waive the immunity in respect of his wife, who was being investigated for suspected criminal offences. In its Decision, the Court considered that Romania had violated the immunity of Judge Birsan and his wife by searching his home on 6 October 2011. The Decision also emphasized that the waiving of immunity does not have retroactive effect; see Court Registrar Press Release annexing the Court’s Decision (29 November 2011). The plenary Court also rejected a request from the Ukrainian Government to waive the immunity of the husband of Judge Yudkivska. It found that the Ukrainian authorities had investigated him in breach of his immunity (see n 21).

  • 26 By Article 26 Convention. Though that Article simply provides that they may be re-elected, Rule 8(3), Rules of Court limits this to one re-election. Rule 8(5) sets out elaborate procedures for the elections.

  • 27 Note also the role of the Bureau, which assists the President in directing the work and administration of the Court. It is composed of the President, the Vice-Presidents, the three Section Presidents, and assisted by the Registrar and the Deputy Registrars—Rule 9A of the Rules of Court.

  • 28 See the Court’s website for, inter alia, practice directions issued by the President on interim measures, just satisfaction, and written pleadings, available at: http://www.echr.coe.int.

  • 29 The Court’s budget for 2022 amounted to €74,510,300. Budgetary decisions are taken by the Committee of Ministers of the Council of Europe. The Council of Europe bears the expenditure on the Court (Article 50 Convention). The Court also has its special account established following the Brighton Conference (2012) for the receipt of voluntary contributions, which are mainly used to recruit lawyers to deal with the backlog. The Brussels Declaration invited the states to make voluntary contributions to the Court’s special account. The importance of retaining a sufficient budget for the Court was also emphasized in the Copenhagen Declaration (para 52).

  • 30 See, for a critical view of the system with proposals for reform, Judicial Independence: The Law and Practice of Appointments to the European Court of Human Rights, Interights, 2003; Drzemczewski, 4 EHRLR 377 (2010); and Procedure for electing judges to the European Court of Human Rights, Committee on Legal Affairs and Human Rights information document, AS/Jur/inf (2013)02. See also the report of the Open Society Justice Initiative and the ICJ, Strengthening from Within: Law and Practice in the Selection of Human Rights Judges and Commissioners, 2017.

  • 31 See the country-specific ‘table of progress’ on the elections of judges to the Court available at: http://www.website-pace.net.

  • 32 See section 6, pp 176–181.

  • 33 See Engel, 32 HRLJ (2013) pp 448–455.

  • 34 See ResCM/Res (2010)26, On the Establishment of an Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Right.

  • 35 See the Panel’s Report of Activities for the Attention of the Steering Committee for Human Rights (15 May 2013) GT-GDR-E (2013)004 and proposals to enable the Panel to carry out its tasks effectively. For example, that the PACE sub-committee should not accept any list containing names of candidates not considered qualified by the Panel or that the Sub-Committee should not proceed with an election until it has received the Panel’s comments; at section 15. See also the Panel’s elucidation, section 5, of the requirements of Article 21(1), Convention. See further the Panel’s 2nd and 3rd activity reports 2016 (sections 54–56), and 2017 (sections 48, 53–54).

  • 36 Resolution 2278 (2019) Modification of various provisions of the Assembly’s Rules of Procedure, 11 April 2019, para 2.4.

  • 37 See the Panel’s 4th activity report (2019).

  • 38 Decision CM/Del/Dec(2019)1333/4.1, 9 January 2019.

  • 39 See Engel, 32 HRLJ 7–12 (2013), p 449. Various proposals on the enhancement of the Panel’s functioning have also been considered by the Steering Committee for Human Rights (CDDH). In its ‘Draft report on the process of selection and election of judges of the European Court of Human Rights’ (DH-SYSC-I(2017)014 of 5 May 2017), the CDDH drafting group rejected the proposal of making the Panel’s opinions binding, considering that it would be contrary to the Panel’s advisory role. It also considered that the confidentiality of the advice given by the Panel should be preserved; and interaction between the governments and the Panel before reaching the final decision on selection should be enhanced. The same was stressed for the interaction between the Panel and the Assembly’s Committee on the Election of Judges. A possibility of holding interviews by the Panel was not retained.

  • 40 See further CDDH (2017), sections 80–102.

  • 41 Resolution 2002 (2014) of 24 June 2014.

  • 42 In addition, the chairpersons of the Committee on Legal Affairs and Human Rights and the Committee on Equality and Non-Discrimination are ex officio members of the AS/Cdh.

  • 43 For the details on the procedure of the election of judges, see CDDH (2017), sections 73–79; and Drzemczewski, 35 HRLJ 1–8 (2015) pp 269–274. See also an overview of the current procedures in Drzemczewski, 55 RGDE (2021).

  • 44 The ‘exceptional circumstances’ exist when all the necessary and appropriate steps have been taken to ensure the gender balance of the list. The ‘exceptional circumstances’ must be so determined by a two-thirds majority of the Committee on the Election of Judges, and whose position subsequently needs to be endorsed by the Assembly. See further the report of the Committee on the Election of Judges to the European Court of Human Rights (AS/Cdh/Inf (2017) 01 rev 6 of 11 October 2017). See also the report of the Assembly’s Committee on Legal Affairs and Human Rights on Resolution 1366 (Doc 9963 of 7 October 2003), which further outlines the general qualities it will look for in a candidate; also the Guidelines of the Committee of Ministers on the Selection of Candidates for the Post of Judge CM (2012)40, and the Explanatory Memorandum (29 March 2012), which are concerned with the national selection process.

  • 45 Advisory Opinion on Certain Legal Questions concerning the Lists of Candidates for the Election of Judges to the European Court of Human Rights No A47-2008-001 (2008) GC. See Mowbray, 8 HRLR 549 (2008).

  • 46 Following the Advisory Opinion, the Assembly changed its rules to permit the above-noted exceptions to the gender requirement, Resolutions 1627 (2008) and 1841 (2011).

  • 47 For the relevant rules of the Assembly, see Appendix to Resolution 1432 (2005).

  • 48 Advisory Opinion (No 2) on Certain Legal Questions concerning the Lists of Candidates Submitted with a View to the Election of Judges to the European Court of Human Rights No A47-2010-001 (2010) paras 45–49 GC.

  • 49 See further CDDH (2017), sections 27–49.

  • 50 See, eg, Marguš v Croatia No 4455/10 (2014) para 11 GC.

  • 51 See also the Court’s Resolution on Judicial Ethics (2021) at: http://www.echr.coe.int.

  • 52 See further section 2.X, pp 131–135.

  • 53 See, eg, the appointment of the judge elected in respect of San Marino to replace the judge elected in respect of Italy in Labita v Italy No 26772/95 (2000) para 4 GC.

  • 54 Article 26(4) as amended by Protocol 14.

  • 55 Rule 29(2).

  • 56 See Rule 29 paras 1(a), (c), and 2(a) and (b). See also Marie-Louise Bemelmans-Videc, Ad Hoc Judges at the European Court of Human Rights: An Overview, PACE Information report, 19 October 2011, Doc 12827.

  • 57 The matter arose in the fourth Cyprus v Turkey inter-state case No 25781/94 para 8 GC, where both the respondent and applicant governments objected to a series of ad hoc judges appointed by the other after the judge elected in respect of Turkey withdrew from sitting in the case and the Turkish Government objected to the judge elected in respect of Cyprus. It appears that, in each case, the decision on whether the national or ad hoc judges were eligible to sit was finally decided by the Grand Chamber in accordance with Rule 28(4). While not expressly provided for by the Convention or Rules of Court, a third party could also object to an ad hoc judge, particularly if it is a state exercising its right to intervene.

  • 58 Behrami and Behrami v France and Saramati v France and 2 Others Nos 71412/01 and 78166/01 (2007) GC. See also Banković and Others v Belgium and 16 Other Contracting States No 52207/99 (2001) DA GC and Senator Lines GmbH v Austria and 14 Other Contracting States No 56672/00, (20040 DA GC; also Artemi and Gregory v 22 Member States of the European Union No 35524/06 (2010) DA.

  • 59 While Article 26 speaks of electing Presidents of Chambers, in practice the plenary Court elects Presidents of Sections, who will in most cases (except when they are the national judge) preside in the chambers of seven judges which are drawn from that Section.

  • 60 Resolution of the European Court of Human Rights on the consequences of the cessation of membership of the Russian Federation to the Council of Europe in light of Article 58 of the European Convention on Human Rights, 22 March 2022.

  • 61 Rule 23(3) of the Rules of Court.

  • 62 See Rules 8 and 25(2). Each Section itself elects its Vice-President, who presides when the President cannot. For example, a President will not preside when a case against their state is being considered.

  • 63 See Rule 24 of the Rules of Court.

  • 64 See p 3.

  • 65 There are currently some 640 staff members of the Registry, approximately half of which are lawyers, and the rest are support staff. Registry employees are staff members of the Council of Europe, the Court’s parent organization, and are subject to the Council of Europe’s Staff Regulations concerning conditions of work and pension entitlement. Approximately half the Registry is employed on contracts of unlimited duration and may be expected to pursue a career in the Registry or in other parts of the Council of Europe. They are recruited on the basis of open competitions. All members of the Registry are required to adhere to strict conditions as to their independence and impartiality and are answerable in practice to the President of the Court rather than to the Secretary General of the Council of Europe. Following the Interlaken Declaration, states parties were asked to consider the possibility of seconding national judges and other officials to the Registry. The Court selects the candidates from lists supplied by the governments. In addition, the Registry has established cooperation with the European Judicial Training Network (EJTN) providing for long-term training programmes in the Court for judges and prosecutors from the EU countries. The rationale underlying the secondment and long-term training schemes is that the seconded officials will assist the Registry in its work and then return to their countries after one or two years with a greater knowledge of the workings of the Court and its case law. The promotion of temporary secondments to the Registry of the Court was underlined in the Brussels Declaration (p 5) and the Copenhagen Declaration (para 53).

  • 66 Article 26(e) of the Convention and Rules 15 and 16 of the Rules of Court.

  • 67 The Registry’s lawyers are divided into case-processing units, each of which is assisted by an administrative team. Cases are assigned to the different units on the basis of knowledge of the language and legal system concerned. The units are therefore in practice often country-specific. The documents prepared by the Registry for the Court are all drafted in one of its two official languages (English and French).

  • 68 In addition to its case-processing divisions, the Registry has units dealing with the following sectors of activity: information technology; case law information and publications; research and the library; press and public relations; and internal administration. It has a central office, which handles mail, files, and archives. The Court also has a Jurisconsult, who heads the Directorate of the Jurisconsult and keeps the consistency of the case law of the Sections under review. There are two language divisions, whose main work is the language-editing of the produced texts within the Court and translating the Court’s judgments into the second official language.

  • 69 CM Res (2011) 9 amending the Staff Regulations with regard to delegation of staff management powers to the Registrar of the European Court of Human Rights.

  • 70 See Mamatkulov and Askarov v Turkey Nos 46827/99 and 46951/99 (2005) paras 100 and 122 GC. Individual complaints can be brought by any natural person or legal entity, regardless of nationality, place of residence, civil status, or capacity to possess rights and to be bound by obligations; Scozzari and Giunta v Italy Nos 39221/98 and 41963/98 (2000) para 138 GC. See also section 2.II, pp 120–122.

  • 71 See also, in this context, interference with communications with lawyers in respect of applications before the Court, Ch 11, section 4.XVI, pp 569–573 on prisoners.

  • 72 See, eg, Vladimir Sokolov v Russia No 31242/05 (2011) para 75.

  • 73 See Lopata v Russia No 72250/01 (2010); Fedotova v Russia No 73225/01 (2006) (police questioning of the applicant’s lawyer and translator concerning the claim for just satisfaction); Oferta Plus SRL v Moldova No 14385/04 (2006) (failure to respect the confidentiality of lawyer–applicant discussions in a meeting room); Petra v Romania No 27273/95 (1998) (threats by the prison authorities); Nurmagomedov v Russia No 30138/02 (2007) (refusal by the prison authorities to forward an application to the Court on the grounds that the applicant was not considered to have exhausted his domestic remedies); Boicenko v Moldova No 41088/05 (2006) (preventing a lawyer from having access to a client’s medical file, which was considered to be essential for the purposes of the application).

  • 74 Sisojeva and Others v Latvia No 60654/00 (2007) para 116 GC, and the many authorities cited therein.

  • 75 Maksym v Poland No 14450/02 (2006) (delaying the posting of a prisoner’s letter to lawyer); Drozdowski v Poland No 20841/02 (2005) (opening letters to a prisoner sent by the ECtHR); also Peers v Greece No 28524/95 (2001). See, in this connection, the European Agreement relating to persons participating in proceedings of the ECtHR 1996, ETS 161.

  • 76 No 23294/05 (2011).

  • 77 Vasiliy Ivashchenko v Ukraine No 760/03 (2012); Naydyon v Ukraine No 16474/03 (2010).

  • 78 Cano Moya v Spain No 3142/11 (2016) para 50.

  • 79 Shtukaturov v Russia No 44009/05 (2008); Gagiu v Romania No 63258/00 (2009); and DB v Turkey No 33526/08 (2010) (the applicant was an asylum seeker). Also, Aleksanyan v Russia No 46468/06 (2008), refusal, despite an interim measure, to allow examination of the applicant who was HIV-positive, by a mixed medical commission, including doctors of his choice. The Court considered that this was part of a strategy to hinder the applicant’s complaint to Strasbourg.

  • 80 No 43290/98 (2002) para 151.

  • 81 No 2204/11 (2015).

  • 82 See, eg, Election Monitoring Centre and Others v Azerbaijan No 64733/09 (2021).

  • 83 Akdivar and Others v Turkey No 21893/93 (1996) paras 104–105 GC.

  • 84 Bilgin v Turkey No 23819/94 (2000) paras 132–136.

  • 85 Tanrıkulu v Turkey No 23763/94 (1999) paras 129–132 GC.

  • 86 No 60654/00 (2007) paras 121–124 GC; the Court attached weight to the ‘wider context’ of the interrogation when compared to the very different and more intimidatory contexts examined in the Turkish cases.

  • 87 No 59727/13 (2017).

  • 88 See section 3.V, pp 149–153 on interim measures.

  • 89 Rule 44 A–C of the Rules of Court.

  • 90 See Kelly (No 2) v United Kingdom No 28833/06 (2011) DA (strike-out for failure to comply with Rule 44 C).

  • 91 See Rogge, in Hartig, ed, Études à la mémoire de Wolfgang Strasser, 2007; Prebensen, in Gudmundur Alfredsson et al, eds, International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th Möller, 2001, pp 533–559; and Greer, European Convention, 2006, pp 24–28; Kamminga, 12 NQHR 153 (1994).

  • 92 No 788/60 (1961) DA.

  • 93 Austria v Italy No 788/60 (1961) DA. See also Ireland v UK No 5310/71 (1978) pp 90–91 PC and Cyprus v Turkey No 8007/77 (Third Application) (1978) DA PC.

  • 94 Ireland v UK No 5310/71 (1978) pp 90–91 para 239 PC.

  • 95 These specific issues have not yet arisen in an inter-state case. However, in France and Others v Turkey Nos 9940/82 et al (1983) DA PC, the Commission found, with reference to the objective character of the Convention system, that France was not barred from bringing a case against Turkey, which gave rise to a consideration of issues under Article 15 to which France has entered a reservation.

  • 96 Cyprus v Turkey No 8007/77 (Third Application) (1978) DA PC. The constitutional propriety of the state’s right to bring the complaint was discussed in the first two Cyprus v Turkey cases, Nos 6780/74 and 6950/75 (1975) DA PC. The Commission, in finding that the applicant state had locus standi, based itself on the fact that the government was and continued to be internationally recognized by states and international organizations as the Government of the Republic of Cyprus.

  • 97 Ireland v UK No 5310/71 (1978) paras 239–240 PC and Denmark and Others v Greece Nos 3321/67 et al 12 YB (the Greek case) 134 (1969) Com Rep; CM Res DH (3).

  • 98 In the early days of the Convention system, there were the following inter-state cases: Greece v UK Nos 176/56 and 299/57 Com Rep (1958); CM Res (59) 12 and (59) 32 (emergency laws and regulations concerning Cyprus); Austria v Italy No 788/60 Com Rep (1963), CM Res (63) DH 3 (prosecution of members of the German-speaking minority in South Tyrol); the first Denmark and Others v Greece (Nos 3321/67 et al (1968) Com Rep (1969), CM Res DH (70) 1) and the second (No 4448/70 (1970) DA PC) ‘Greek case’ (various human rights violations under the Greek dictatorship); the first and the second Ireland v UK cases (No 5451/72 (1972) PC and No 5310/71 (1978) PC) concerning the situation in Northern Ireland; Cyprus v Turkey cases (first and second applications) Nos 6780/74 and 6950/75, Com Rep (1976), CM Res DH (79) 1 DA; the third application No 8007/77 Com Rep (1983), CM Res (92) 12 DA; the fourth application (referred to the Court) No 25781/94 Com Rep, 4 June 1999, (2001)GC; 2014 GC) which concerned consequences of the Turkish military intervention in northern Cyprus in 1974; France and Others v Turkey (Nos 9940/82 et al (1983) and (1985) DA) concerning the consequences of the military takeover in Turkey in 1980; and Denmark v Turkey (No 34382/97 (2000)) concerning the alleged ill-treatment of a Danish national. In more recent times, several cases concerned the Russia–Georgia conflict: Georgia v Russia (No 1) No 13255/07 (2014) GC; Georgia v Russia (No 2) No 38263/08 (2021) GC; Georgia v Russia (No 3) No 61186/09; and Georgia v Russia (No 4) No 39611/18. Several cases also related to the Russian invasion in Ukraine: Ukraine v Russia (re Crimea) and Ukraine v Russia (No 7) Nos 20958/14 and 38334/18 (2020) DA GC; Ukraine v Russia (No 2) No 43800/14; Ukraine v Russia (No 3) No 49537/14 (2015) DA; Ukraine v Russia (No 4) No 42410/15; Ukraine and the Netherlands v Russia Nos 8019/16, 43800/14 and 28525/20; Ukraine v Russia (No 8) No 55855/18; Ukraine v Russia (No 9) No 10691/21; Ukraine v Russia (No 10) No 11055/22; and Russia v Ukraine No 36958/21. The Azerbaijani–Armenian conflict has given rise to the following cases: Armenia v Azerbaijan No 42521/20; Azerbaijan v Armenia No 47319/20; and Armenia v Turkey No 43517/20. Other more recent inter-state cases are Slovenia v Croatia No 54155/16 (2020) DA GC (actions of the Croatian judiciary and executive in relation to legal claims brought by the bank Ljubljanska banka d.d.); Latvia v Denmark No 9717/20 (2020) DA (extradition of a Latvia national from Denmark); and Liechtenstein v the Czech Republic No 35738/20 (alleged violation of Liechtenstein nationals’ property rights in the Czech Republic).

  • 99 Rogge, in Hartig, ed, Études à la mémoire de Wolfgang Strasser, 2007, places nine of the cases in this category: Greece v UK No 176/56 (1956) DA; Austria v Italy No 788/60 (1961) DA; Ireland v UK No 5310/71 (1978) PC; Cyprus v Turkey No 25781/94 (2014) GC; to which can be added the Georgia v Russia No 13255/07 (2019) GC, Ukraine v Russia Nos 20958/14 and 38334/18 (2020) DA GC, and Slovenia v Croatia No 54155/16 (2020) DA GC cases.

  • 100 Consider, eg, the Cyprus v Turkey No 25781/94 (2014) GC dispute. The Commission’s report in the first two applications was forwarded to the Committee of Ministers in 1976. The Committee took formal note of the report as well as a memorial of the Turkish Government, urged the parties to resume inter-communal talks, and ‘found that events which occurred in Cyprus constitute violations of the Convention’ without attaching direct responsibility. It took until 31 August 1979 for the case documentation (including the Commission’s report) to be declassified (Resolution DH (79) 1 of 20 January 1979). In the third case, the Commission’s report of 4 October 1983 remained pending before the Committee of Ministers until 2 April 1992, when it was decided to publish it. The Committee of Ministers resolved that the decision to publish completed its consideration of the case under Article 32 (Resolution DH (92) 12).

  • 101 Sargsyan v Azerbaijan No 40167/06 (2015) GC, and Chiragov and Others v Armenia No 13216/05 (2015) GC; both concerning the rights of displaced persons (Armenians and Azerbaijanis, respectively) in the frozen Nagorno–Karabakh conflict. In each of the cases, the government of the other state intervened as a third party.

  • 102 Ljubljanska banka d.d. v Croatia No 29003/07 (2015) DA.

  • 103 The conditions set out in Article 34 are considered in Ch 2, section 6.I, pp 89–90. See also Protocol 16 in this chapter, section 6.III, pp 179–181, which provides for the possibility of advisory opinions requested by national superior courts.

  • 104 This is a requirement for any advisory opinion (see Article 31(b)). The procedure governing advisory opinions is considered separately in section 2.XV, pp 144–145. Denmark v Turkey No 34382/97 (2000) DA was the subject of a settlement adopted by a Chamber (n 98).

  • 105 See, generally, the Practice Direction on the Institution of Proceedings, annexed to the Rules of Court (19 September 2016). Applicants should be diligent in conducting correspondence with the Registry.

  • 106 Rule 34 regulates the use of languages in the procedure before the Court.

  • 107 See Ch 2, section 4, pp 64–70 on the four-month rule.

  • 108 Details such as personal identification information; information on the applicant’s representation; the name of the respondent state; a brief statement of facts and complaints; an explanation as to compliance with the admissibility criteria; the object of the application; and all supporting documents, especially national court decisions and the copies of the remedies used.

  • 109 Rule 47(5) of the Rules of Court.

  • 110 See the Court’s press release of 9 January 2014 setting out the details of the changes. See also the Rules of Court of 6 May 2013 and 1 June and 5 October 2015.

  • 111 In the first year of application of the revised Rule 47, 23 per cent (12,191) of all incoming applications (52,758) failed to comply with the rule. In 2015, 32,400 incoming applications were disposed of administratively, while in 2016 this decreased to 20,950 of the incoming applications. In 2021, 16,400 applications were disposed of administratively, 67 per cent of which for failure to comply with the requirements of Rule 47. See the Court’s statistics, and the Report on the Implementation of the Revised Rule on the Lodging of New Applications (February 2015).

  • 112 See Rule 47(2)(a): ‘All of the information referred to … should be sufficient to enable the Court to determine the nature and scope of the application without recourse to any other document.’

  • 113 There may be an adequate explanation for the failure to present the application in the required form. For example, an applicant who is in detention may not be able to obtain the necessary supporting documentation. A specific exception is made for applicants seeking interim measures. Finally, the Court retains an overriding discretion to accept an application even if not presented in the correct form. Indeed, the Court has stressed that the Rule 47 requirements cannot be raised as the inadmissibility grounds under Article 35 and that, following the communication of the case to the government, the application cannot be rejected for failure to comply with the procedural rules of the Court (Knick v Turkey No 53138/09 (2016) para 36). The above-noted three exceptions, framed in light of real and recurring situations in the Court’s practice, are designed to ensure that the rule does not operate harshly or unjustly. This will concern a minority of new applications. For the great majority, the Registry has been instructed to systematically apply the rule.

  • 114 Protocol 15 reduced the six-month period to four months; see section 6.I, pp 64–70.

  • 115 It would be advisable for applicants to submit their application forms and supporting documents well within the four-month period to allow for the possibility of submitting later amendments to comply with Rule 47.

  • 116 See the Court’s website at: http://www.echr.coe.int for further details. For cases dealt with on an urgent basis, see, eg, Pretty v United Kingdom No 2346/02 (2002); Hirsi Jamaa and Others v Italy No 27765/09 (2012) GC; MSS v Belgium and Greece No 30696/09 (2011) GC; Mousiel v France No 67263/01 (2002).

  • 117 Though with a filtering policy that is based on the principle of ‘one-in-one-out’, it is these obviously hopeless cases that will be dealt with first by the single judge before cases belonging to a higher category.

  • 118 Details of the new case-processing strategy are available on the Court’s website (http://www.echr.coe.int).

  • 119 At the time of introduction of the new strategy, 650 cases in category 4 were identified as ‘impact’ cases. By the end of 2021, there were 528 such applications and in that year the Court processed 330 of them. See the Court’s 2021 statistics available on its website (http://www.echr.coe.int).

  • 120 See n 118.

  • 121 The single-judge procedure was introduced by Protocol 14, which came into force on 1 June 2010. For the text of the Protocol and Explanatory Report, see ‘Guaranteeing the effectiveness of the European Convention on Human Rights—Collected Texts’, Council of Europe, 2004. For commentary, see Eaton and Schokkenbroek, 26 HRLJ 1 (2005) and Greer, PL 83 (2005).

  • 122 See Rule 27A. The single-judge formation decided 81,764 cases in 2012, an increase of 74 per cent compared with 2011 (46,930). The increase is due to the introduction of new working methods and to the fact that in 2012 more judges were appointed single judges. For the first time since 1998, the stock of allocated applications pending before the Court decreased over the year, by 16 per cent from 151,600 to 128,100. In 2021, the single‐judge formation decided 27,966 applications. For further statistics, see the Court’s website at: http://www.echr.coe.int.

  • 123 Ölmez and Ölmez v Turkey No 39464/98 (2005) (re-opening decision), and the authorities cited therein; also Edwards v UK No 13071/87 (1989) para 26. The re-opening decision will be taken by the formation that took the original decision.

  • 124 Ölmez and Ölmez v Turkey No 39464/98 (2005).

  • 125 See further the press release issued by the Registrar of the Court (ECHR 180 (2017)) 1 June 2017.

  • 126 See also Rule 27.

  • 127 Article 28(1).

  • 128 While the concept of ‘well-established case law’ (WECL cases) appears to refer to repetitive or clone cases, Article 28 does not limit it to such cases. There are other categories of cases that can be so described, relating, eg, to issues under many Articles of the Convention where the questions of interpretation are the subject of extensive jurisprudence (eg Article 10 cases or cases concerning prison conditions). These are called ‘Broader WECL cases’. The Court has started applying the accelerated WECL procedure to such cases, which are in many ways different from the traditional repetitive cases concerning length of procedure or non-enforcement of a court judgment.

  • 129 See, eg, Taş v Turkey No 702/11 (2017) para 4.

  • 130 Article 28 as amended and Explanatory Report, paras 68–72.

  • 131 See section 2.VI.

  • 132 All judgments and decisions, apart from single-judge decisions, are available on the Court’s Hudoc site. The Court also publishes various analytical documents which can be found on its website, notably the monthly Case-law Information Note (CLIN) and the Overview of the Court’s case law prepared by the Directorate of the Jurisconsult. Until 2015, the important judgments and decisions were published in the Reports of Judgments and Decisions (ECHR series) and online; those for the years 2016 onwards are published online only. They are selected as ‘key cases’ quarterly by the Bureau, upon recommendation by the Jurisconsult. It is also possible to filter Hudoc in order to identify the ‘key cases’.

  • 133 Both the statement of facts and the questions are now available online on the Court’s website (Hudoc, statement of facts collection) at: http://www.echr.coe.int.

  • 134 See further the Court’s Annual Report 2016 (available on the Court’s website).

  • 135 The Chamber can, however, ask for further observations, clarifications, and factual information from either party, as it sees fit.

  • 136 Khlaifia and Others v Italy No 16483/12 (2016) paras 51–54 GC.

  • 137 See Article 29(1), which assumes that admissibility and the merits will be considered together (amendment introduced by Protocol 14). See also Rule 54A on the joint examination of admissibility and merits. Inter-state cases cannot be the subject of the joint procedure since admissibility must be examined separately: Rules 48 and 54A.

  • 138 See section 2.X.

  • 139 See Rule 24 for the regime governing the composition of the Grand Chamber. The President, Vice-Presidents, and Presidents of Sections sit as ex officio members of the Grand Chamber. In a referral case under Article 43, the remaining members are drawn by lot by the President. The members of the Chamber which gave the original judgment are not eligible, apart from the President of the Section and the national judge or any judge who sat in the Chamber which ruled on the admissibility of the application. It often happens in a referral case that the President of the Section (unless he is also the national judge) will not exercise his right to sit in the Grand Chamber for reasons of conscience; having already given judgment in the case, it may be considered inappropriate to sit a second time. Similar rules apply in relinquishment cases (Article 30). On 18 October 2021, the Court changed the earlier version of Rule 24 § 2 which (in sub-paragraph (c)) provided that members of the Chamber that relinquished the case were automatically included in the Grand Chamber. This is now no longer the case. Even in such cases, apart from judges who sit ex officio, the Grand Chamber is completed by the drawing of lots. The modalities for drawing lots to complete the formations have been worked out ‘with due regard to the need for a geographically balanced composition reflecting the different legal systems among the Contracting Parties’ (Rule 24(2)(e)).

  • 140 Before the coming into force of Protocol 15 (1 August 2021), the parties had a month following notification of the intention to relinquish to file a ‘duly reasoned objection’. Where the objection is not duly reasoned, the Court had a power to refuse it, although in practice it happened only once in Grzęda v Poland No 43572/18 (2022) para 7 GC. The coming into force of Protocol 15 removed this veto by the parties. According to Article 8(2) of Protocol 15, the removal of the parties’ veto would not apply to pending cases in which one of the parties had already objected, before entry into force of the Protocol, to a Chamber’s proposal of relinquishment.

  • 141 See Court document The Practice Followed by the Panel of the Grand Chamber when Deciding on Requests for Referral under Article 43 of the Convention (June 2021); available on the Court’s website at: http://www.echr.coe.int.

  • 142 The difference in wording suggests that relinquishment should be limited to cases raising difficult issues of interpretation and where the resolution of a case by the Chamber may result in case law inconsistency. On the other hand, referral can only be sought with regard to cases raising difficult issues of interpretation or a serious issue of general importance, but not in the case of a case law inconsistency introduced by a Chamber judgment. However, a strict compliance with these categories has not been the practice of the Court to date. The Explanatory Report states that the wording was taken from the Rules of Court of the former Court (para 79) but gives no further explanation for the different wording. Relinquishment cases are described as ‘cases with specified serious implications’ (para 46)—wording which is not limitative. See further Schabas, The European Convention on Human Rights: A Commentary, 2015, pp 843–845. See also The Practice Followed by the Panel of the Grand Chamber, n 141, paras 21–23.

  • 143 Paras 17–18.

  • 144 Which Rule provides that it shall be composed of the President of the Court, two Presidents of Sections designated by rotation, two other judges designated by rotation from the remaining Sections, and two further substitute judges, save that it will not include any judge who took part in the consideration of the admissibility and merits of the case and any judge who is elected in respect of or who is a national of the contracting party concerned.

  • 145 In response to demands by states that reasons be given by the Panel, the Court has issued a report which sets out how the Panel procedure operates in practice and the criteria that are employed in its decision-making. The first version of the report (The General Practice Followed by the Panel of the Grand Chamber when Deciding on Requests for Referral in Accordance with Article 43 of the Convention) was issued in 2011 and the report was then updated in June 2021. See n 141. Available on the Court’s website at: http://www.echr.coe.int. The call to the Court to reason the decisions by its panel of five judges on refusal of referral requests was reiterated in the Brussels Declaration (p 4).

  • 146 The Practice Followed by the Panel of the Grand Chamber, n 141, paras 2–4.

  • 147 See Arvanitaki-Roboti and Others v Greece No 27278/03 (2006) and No 27278/03 (2008) GC.

  • 148 Öcalan v Turkey No 46221/99 (2005) para 9 GC. See further the Copenhagen Declaration (para 38) on the possibility of support by other states for a referral request.

  • 149 The three months start to run from the day which follows the delivery date of the Chamber judgment: thus, for a judgment delivered on 10 January the time limit expires at midnight on 10 April; see The Practice Followed by the Panel of the Grand Chamber, n 141, para 54. The issue gave rise to a very public dispute with the UK Home Office in connection with the last-minute reference by the applicant’s lawyers in Othman (Abu Qatada) v United Kingdom No 8139/09 (2012); see the Court’s press release concerning the Panel’s refusal of the request on its merits (9 May 2012).

  • 150 See ch 2, section 4.IV.

  • 151 See, eg, Stec and Others v UK Nos 65731/01 and 65900/01 (2006) GC (whether a non-contributory social security benefit came within Article 1 of Protocol 1) and Kopecký v Slovakia No 44912/98 (2004) GC (concerning the meaning of legitimate expectation in the area of property rights).

  • 152 See The Practice Followed by the Panel of the Grand Chamber, n 141, paras 33–34; eg, Pretty v UK No 2346/02 (2002) (concerning refusal of euthanasia to a seriously ill person) and Evans v UK No 6339/05 (2007) GC; (concerning the implantation of embryos and the issue of consent).

  • 153 See Cumpana and Mazare v Romania No 33348/96 (2004) paras 62–69 GC, where one applicant signed the referral request on behalf of both applicants and the Grand Chamber examined the ‘case’ as involving both applicants.

  • 154 Pisano v Italy No 36732/97 (2002) paras 24–29 GC.

  • 155 Ilias and Ahmed v Hungary No 47287/15 (2019) para 177 GC.

  • 156 Odièvre v France No 42326/98 (2003) para 22 GC; Azinas v Cyprus No 56679/00 2004-III; paras 32, 37 GC; Vučković and Others v Serbia Nos 17153/11 et al (2014) para 56 GC.

  • 157 Buzadji v the Republic of Moldova No 23755/07 (2016) paras 62–67 GC. See also, mutatis mutandis, Nikolova v Bulgaria No 31195/96 (1999) paras 41–44 GC; Hasan and Chaush v Bulgaria No 30985/96 (2000) para 56 GC (in both cases, the government having failed to raise the question in proceedings before the old Commission, it was estopped from raising it before the Grand Chamber of the new Court).

  • 158 Regner v Czech Republic No 35289/11 (2017) paras 96–97 GC. See also, mutatis mutandis, Freedom and Democracy (ÖZDEP) v Turkey No 23885/94 (1999) para 25 GC (the old Commission have considered the admissibility question on its own motion being sufficient to allow the government to raise it before the Grand Chamber).

  • 159 A and Others v United Kingdom No 3455/05 (2009) paras 154–158 GC; but the Court accepted that it was open to the government to challenge before the Grand Chamber the finding by the House of Lords that the Article 15 derogation was invalid.

  • 160 Al-Skeini and Others v United Kingdom No 55721/07 (2011) paras 98–100 GC.

  • 161 No 36732/97 (2002) para 28 GC.

  • 162 Tahsin Acar v Turkey No 26307/95 (2003) paras 63–64 GC.

  • 163 Sisojeva and Others v Latvia No 60654/00 2007-IGC.

  • 164 Nos 46852/13 et al (2017) GC.

  • 165 No 40450/04 (2009).

  • 166 Nos 37685/10 and 22768/12 (2018) GC.

  • 167 See the speech by the President of the Court, J-P Costa, to Leiden University on 30 May 2008, available on the Court’s website at: http://www.echr.coe.int.

  • 168 See, eg, the Izmir Declaration, F (a); the Brighton Declaration, para 23; the Brussels Declaration, p 4, and the Copenhagen Declaration, para 27.

  • 169 See Rule 18B of the Rules of Court.

  • 170 See section 6.I, pp 178–179.

  • 171 See, for an overview of the Court’s practice, Keller, Forowicz, and Engi, Friendly Settlements before the European Court of Human Rights: Theory and Practice, 2010. On unilateral declarations, see Rozakis, in Kohen, ed, Promoting Justice, Human Rights and Conflict Resolution through International Law: Liber Amicorum Lucius Caflisch, 2007. Also Myjer, in Caflisch et al, eds, Liber Amicorum Luzius Wildhaber, 2007, pp 309–327; Bychawska-Siniarska, 6 EHRLR 673–678 (2012).

  • 172 No 31725/96 (2001) para 14.

  • 173 Ahmed v Sweden No 9886/05 (2007).

  • 174 See, eg, Sutherland v UK No 25186/94 (2001) GC; Ali Erol v Turkey No 35076/97 (2002). The inter-state case of Denmark v Turkey was one of the most constructive settlements reached before the Court in terms of the scope of the measures agreed to by the parties; No 34382/97 (2000) para 2. Also, the friendly settlement of France and Others v Turkey Nos 9940/82 et al (1983) DA PC outlining the terms of a settlement whereby Turkey agreed to submit a series of reports on its implementation of Article 3 which would form the basis for a series of dialogues between Turkey and the Commission. See also Greece v United Kingdom No 176/56 (1958) Com Rep; CM Res DH (97) 376.

  • 175 Initially as a test phase, which continued throughout 2020 and 2021. See further the Court’s 2019 Annual Report (p 125) and the Instructions for the applicants concerning the two phases, all available on the Court’s website (http://www.echr.coe.int).

  • 176 In some cases, a friendly settlement proposal is not made: eg if the case raises a novel issue or if some governments do not wish to settle cases in this manner.

  • 177 Following the entry into force of Protocol 14, friendly settlements are now adopted by way of a decision striking the case off the list. In 2011, there were 606 friendly settlements, and 1,303 in 2012. In 2021, there were 2,174 friendly settlements, which is an increase of 58 per cent in comparison to 2020 (1,375 settlements); see Analysis of Statistics on the Court’s website at: http://www.echr.coe.int.

  • 178 See, eg, Paladi v Moldova No 39806/05 (2007); Ukrainian Media Group v Ukraine No 72713/01 (2005). See, by contrast, Sukhorukikh v Russia No 37548/04 (2006); Paritchi v Moldova No 54396/00 (2005); and Podbolotova v Russia No 26091/02 (2005).

  • 179 Katić v Serbia No 13920/04 (2009) DA.

  • 180 Nos 42165/02 and 466/03 (2007) DA.

  • 181 No 9043/05 (2014) para 116.

  • 182 In another case where the friendly settlement negotiations had also been conducted outside the procedural framework managed by the Registry, the Court applied its standard case law on the confidentiality of the friendly settlement negotiations under Rule 62 § 2 of the Rules of Court (Ramkovski v FYRM No 33566/11 (2018)).

  • 183 No 67037/09 (2011). The Court has not allowed a contracting party to refer to the applicant’s failure to agree to a settlement as a reason for losing victim status; RR v Poland No 27617/04 (2011).

  • 184 Miroļubovs and Others v Latvia No 798/05 (2009) paras 66–70; see also the separate opinion of Judge Myjer on this point.

  • 185 See new Article 39 and the Explanatory Memorandum to the Protocol, paras 91–94.

  • 186 See, eg, Akman v Turkey No 37453/97 (2001), the first unilateral declaration adopted by the Court. The government had inter alia admitted liability in respect of a killing by the security forces and offered to pay £85,000 in compensation. The Court took into account not only the admissions and undertakings made by the government, but also the fact that it had previously specified in numerous cases the nature and extent of the obligations which arise for states concerning killings by the security forces. Criticism has focused on the fact that the compensation was paid ex gratia (notwithstanding the admission) and that no proper investigation had been carried out by the authorities. For critical comment on such decisions, see Sardaro, 6 EHRLR 601 (2003). Where the applicant expresses his agreement to a unilateral declaration, this will be considered a friendly settlement; Cēsnieks v Latvia No 9278/06 (2012). The Court will no longer accept undertakings to pay ex gratia and requires that this term no longer appear in declarations.

  • 187 Megadat.com SRL v Moldova No 21151/04 (2011).

  • 188 In 2011, there were 703 unilateral declarations and in 2012 there were 606. In 2021, there were 470 unilateral declarations. See the Analysis of Statistics on the Court’s website at: http://www.echr.coe.int.

  • 189 No 26307/95 (2003) para 76 GC. See also the dissenting opinion of Judge Loucaides in the Chamber judgment in this case; judgment of 9 April 2002 for criticism of unilateral declarations in disappearance cases.

  • 190 As provided in Article 37(2) of the Convention and Rule 43(5) of the Rules of Court.

  • 191 The Court eventually gave judgment in the case, finding no substantive violation of Article 2 but a procedural violation of that Article; Tahsin Acar v Turkey No 26307/95 (2004) para 84 GC. Other cases struck out on this basis include Haran v Turkey No 25754/94 (2002); Meriakri v Moldova No 53487/99 (2005); and Van Houten v Netherlands No 25149/03 (2005).

  • 192 No 44898/10 (2016) GC.

  • 193 See, eg, Prencipe v Monaco No 43376/06 (2009); Vyerentsov v Ukraine No 20372/11 (2013); Rozhin v Russia No 50098/07 (2011); Missenjov v Estonia No 43276/06 (2009); Vojtechova v Slovakia No 59102/08 (2012); Dochnal v Poland No 31622/07 (2012); Valiuliené v Lithuania No 33234/07 (2013); Przemyk v Poland No 22426/11 (2013).

  • 194 See, eg, Willems and Gorjon v Belgium Nos 74209/16 et al (2021).

  • 195 See, eg, Kovacic and Others v Slovenia Nos 44574/98 et al (2008) GC; Sisojeva and Others v Latvia No 60654/00 (2007) GC; also Shevanova v Latvia No 58822/00 (2007) GC and Kaftailova v Latvia No 59643/00 (2007) GC, where the Grand Chamber, taking a different view from the Chamber, found that the applicants, long-term immigrants who did not benefit from resident status in Latvia, could avail themselves of options outlined by the Latvian authorities to regularize their status, thus considering the matter to be ‘resolved’ within the meaning of Article 37(1)(b). The granting of a permanent residence permit to the applicant following the referral of the Chamber judgment to the Grand Chamber would have the same effect (eg ME v Sweden No 71398/12 (2015) GC and WH v Sweden No 49341/10 (2015) GC).

  • 196 See Sisojeva, ibid paras 104 and 105 ff (striking out the application insofar as it related to Article 8 and continuing its examination in relation to the Article 34 complaint).

  • 197 See Akman v Turkey No 37453/97 (2001); Pisano v Italy No 36732/97 (2002) para 41 GC; and Ohlen v Denmark No 63214/00 (2005) para 25.

  • 198 El Majjaoui and Stichting Touba Moskee v Netherlands No 25525/03 (2007) para 30 GC.

  • 199 See Ch 2, section 6.I, pp 88–89 on victim status.

  • 200 Matter considered resolved following a lead pilot judgment: Association of Real Property Owners in Łódź v Poland No 3485/02 (2011); Dalban v Romania No 28114/95 (1999) paras 41–45 GC; Burdov v Russia No 59498/00 (2002) paras 27–32; Ohlen v Denmark No 63214/00 (2005) para 26. See also Freimanis and Lidums v Latvia Nos 73443/01 and 74860/01 (2006) paras 66–74, and references therein. However, the requirement of a recognition of a violation is not a requirement in deportation cases; see Sisojeva and Others v Latvia No 60654/00 (2007) para 93 GC.

  • 201 H P v Denmark No 55607/09 (2016) para 78 DA.

  • 202 No 76642/01 (2006) GC.

  • 203 Association SOS Attentats and De Boëry v France No 76642/01 (2006) para 37 GC, and the extensive authorities cited therein. See also Chagos Islanders v United Kingdom No 35622/04 (2012) DA, where the applicants were considered to have lost their victim status as a result of a settlement reached in national proceedings.

  • 204 Khan v Germany No 38030/12 (2016) paras 33–34 GC.

  • 205 No 40016/98 (2003) 528. See also Atmaca v Germany No 45293/06 (2012), struck out under Article 37(1)(c) (continued examination not justified) on the grounds that he no longer faced a real and imminent threat of extradition to Turkey following his release pending the outcome of extradition proceedings.

  • 206 See the discussion of the Karner case, in Ch 2, section 6.I, p 99. Also, Tyrer v United Kingdom No 5856/72 (1978) paras 24–27; F G v Sweden No 43611/11 (2016) paras 77–84 GC; and, by contrast, Mraović v Croatia No 30373/13 (2021) GC.

  • 207 Nos 46852/13 et al (2017) paras 200–208 and 219–220 GC.

  • 208 Yuriy Nikolayevich Ivanov v Ukraine No 40450/04 (2009).

  • 209 Article 46(3).

  • 210 See section 7, pp 181–184.

  • 211 When at the moment of the adoption of the judgment the Court has made a manifestly erroneous finding with regard to an otherwise known fact that goes to the substance of its decision, notably in the context of Article 41 awards, such ‘rectifications’ are dealt with as revisions under Rule 80 (see, eg, Baumann v Austria No 76809/01 (2005) revision). The correctness of such an approach may be called into question given that Rule 80 allows for a possibility of revision only in case of a ‘discovery of a fact … which, when a judgment was delivered, was unknown to the Court’.

  • 212 No 2614/65 (1973).

  • 213 No 15175/89 (1996) 557. Note also the Committee of Ministers’ decision in Del Río Prada v Spain No 42750/09 (2013) GC to accept Spain’s decision not to pay sums awarded for non-pecuniary damage on the grounds that the applicant owed considerable amounts to the state in respect of unpaid damages to her victims.

  • 214 Attachment is discussed further in section 4, p 171 on Article 41.

  • 215 No 13616/88 (1997).

  • 216 (Revision) No 18791/03 (2012).

  • 217 See, eg, Resul Sadak and Others v Turkey (Revision) No 74318/01 (2008). In the same vein, see Bajrami v Albania (Revision) No 35853/04 (2007). For revision of costs and expenses, see Baumann v Austria (Revision) No 76809/01 (2005). See also Gabay v Turkey No 70829/01 (2006); Sabri Taş v Turkey (Revision) No 21179/02 (2006); EP v Italy (Revision) No 31127/96 (2001); Stoicescu v Romania No 31551/96 (2004) DA.

  • 218 Request for revision of the judgment of 18 January 1978, No 5310/71 (2018). See ch 18.

  • 219 See, eg, Bugajny and Others v Poland (Revision) No 22531/05 (2009), where the government was unable to show that it could not reasonably have known the existence of the new fact; also Metalco BT v Hungary (Revision) No 34976/05 (2012), where the Court rejected a request to revise the judgment on the basis that the company had gone into liquidation before the date of the Court’s judgment. It held that the liquidator had not indicated that he had lost interest in the case. If he did not wish to pursue it, he should have informed the Court.

  • 220 (Revision) Nos 21825/93 and 23414/94 (2000) para 36; see the dissenting opinions of Judges Casadevall and Maruste. Also Pardo v France (Revision) No 13416/87 (1996) and for inter-state cases, Ireland v UK (Revision) No 5310/71 (2018).

  • 221 See generally, Costa and Titiun, Les avis consultatifs devant la CEDH, 2013, pp 605–615.

  • 222 By Article 31, such requests are considered by the Grand Chamber.

  • 223 Provision is also made in Protocol 16 for advisory opinions to be sought by superior national courts; see section 6.III, pp 179–181.

  • 224 Article 48 provides that it is for the Court to decide whether a request for an advisory opinion is within its competence as defined in Article 47. Rules 87, 88, and 89 of the Court refer to the concept of a ‘reasoned decision’ for decisions taken pursuant to Article 48 on whether a request for an advisory opinion is within the Court’s competence. This was the first such decision. It was adopted on 2 June 2004.

  • 225 Advisory Opinion on Certain Legal Questions concerning the Lists of Candidates for the Election of Judges to the European Court of Human Rights No A 47-2008-001 (2008) GC.

  • 226 Advisory Opinion (No 2) on Certain Legal Questions concerning the Lists of Candidates Submitted with a View to the Election of Judges to the European Court of Human Rights No A 47-2010-001 (2010) GC. The Court also found that it had no jurisdiction to consider the compatibility with the Convention of provisions of a PACE resolution; see n 206, para 36.

  • 227 No oral hearing has yet been held. The opinion of 12 February 2008 involved a written procedure in which each contracting party, as well as PACE, were given an opportunity to file written observations. It does not appear that the Convention makes any provision for third-party interventions by NGOs in advisory opinion proceedings. Article 36 of the Convention covering such interventions speaks only of ‘cases’ and so appears only to contemplate inter-state cases and individual applications. However, support for the right to seek leave to intervene may be found in Rule 82, which allows the Court to apply other provisions of the Rules of Court to the extent it considers this to be appropriate, and this may allow for such interventions in application of Rule 44. Indeed, in the context of the Oviedo Convention Advisory Opinion procedure, where the Court applied the Chapter IX of the Rules of Court procedure per analogiam, it also granted leave to several third-party interveners (see Decision on the competence of the Court to give an advisory opinion under Article 29 of the Oviedo Convention No A 47-2021-001 (2021) paras 3 and 5 GC).

  • 228 ETS No 164. Article 29 provides as follows:

    The European Court of Human Rights may give, without direct reference to any specific proceedings pending in a court, advisory opinions on legal questions concerning the interpretation of the present Convention at the request of:

    the Government of a Party, after having informed the other Parties;

    the Committee set up by Article 32, with membership restricted to the Representatives of the Parties to this Convention, by a decision adopted by a two-thirds majority of votes cast.

  • 229 The Court’s judges may also be invited to sit on the European Tribunal established under to the Additional Protocol to the European Convention on State Immunity 1972 ETS No 74A.

  • 230 Decision on the competence of the Court to give an advisory opinion under Article 29 of the Oviedo Convention No A 47-2021-001 (2021) GC.

  • 231 Rule 33. In keeping with the philosophy of transparency underlying Protocol 11 setting up the new Court, all documents will also be accessible to the public unless the President decides otherwise for good cause: Rule 33(2). Arrangements can be made at the Registry for the public or journalists to inspect such documents—see the Court’s website for details at: http://www.echr.coe.int. It is the Court’s policy that documents must be consulted at the seat of the Court.

  • 232 See para 3 of Practice Direction of 14 January 2010 on Requests for Anonymity (Rules 33 and 47).

  • 233 Practice Direction of 14 January 2010 on Requests for Anonymity, paras 4 and 5.

  • 234 See generally, Rule 36(1)–(5).

  • 235 Rule 36(4)(b). For a decision to refuse a lawyer permission to appear, see Manoussos v Czech Republic and Germany No 46468/99 (2002) DA. Even if a lawyer is no longer able to practise in their own country, they could still be authorized by the President, who has full discretion to evaluate all the circumstances to represent an applicant.

  • 236 See, eg, Open Door and Dublin Well Woman v Ireland Nos 14234/88 and 14235/88 (1992) PC; and Kamasinski v Austria No 9783/82 (1989).

  • 237 In X v Croatia No 11223/04 (2008), paras 2 and 61), where the applicant was a person entirely divested of the capacity to act and was not capable under domestic law of choosing her own legal representative, the Court indicated to the government under Rule 39 that a lawyer should be appointed to represent the applicant in the proceedings before it, following which a lawyer was appointed by the relevant welfare centre.

  • 238 Rule 36(3).

  • 239 Shanidze v Georgia No 56080/10 (2015) paras 21–23 DA. See, by contrast, Melnik v Ukraine No 72286/01 (2006) paras 56–57.

  • 240 Terentyev v Russia No 25147/09 (2017) para 32.

  • 241 Rule 101.

  • 242 National legal aid schemes rarely offer legal aid for Strasbourg proceedings. The Danish Legal Aid Act (1999) is an exception; see Vasileva v Denmark No 52792/99 (2003) para 50.

  • 243 Rule 102(2).

  • 244 The payment of legal aid is regulated by Chapter XI of the Rules of Court.

  • 245 Rule 63. The public may be excluded ‘in the interests of morals, public order or national security in a democratic society, where the interest of juveniles or the protection of the private life of the parties so require’; see Rule 63(2). In camera hearings have been rare but have taken place in a number of cases where the rights of children were at stake: Z v Finland No 22009/93 (1997); before the Chamber in K and T v Finland No 25702/94 (2000); and L v Finland No 25651/94 (2000).

  • 246 See the Court’s website at: http://www.echr.coe.int for an archive of oral hearing webcasts. Webcasting of hearings is not live and will take place in the afternoon of the hearing following a favourable decision of the Chamber.

  • 247 See, eg, Abdi Ibrahim v Norway No 15379/16 (2021) para 12 GC.

  • 248 See Guidelines on Hearings by Videoconference; available on the Court’s website: http://www.echr.coe.int.

  • 249 In recent years, there were only two Chamber hearings in 2017: both were held before a Chamber of the First Section. The first was held in May in the case Sharxhi and Others v Albania No 10613/16 (2018), and the second was held in November concerning the cases Big Brother Watch and Others v United Kingdom Nos 58170/13 et al (2018), Bureau of Investigative Journalism and Alice Ross v United Kingdom No 62322/14 (2015), and 10 Human Rights Organisations and Others v the United Kingdom No 24960/15 (2015), and in 2018 there was a hearing before the Second Section in Ahmet Tunç and Others v Turkey Nos 4133/16 and 31542/16 (2019) DA and Elçi v Turkey No 63129/15 (2019) DA.

  • 250 See, eg, the United Kingdom’s oral submissions in Saadi v Italy No 37201/06 (2008) GC.

  • 251 Article 36(3). His written and oral interventions have been very few and this for reasons of policy and staff resources. See, eg, MSS v Belgium and Greece No 30696/09 (2011) GC. For further details of third-party interventions by the Commissioner, see his website at: http://www.coe.int/en/web/commissioner; see this chapter, section 3.IX, pp 161–164.

  • 252 See Rieter, Preventing Irreparable Harm—Provisional Measures in International Human Rights Adjudication, 2010; Caflisch, in Dupuy et al, eds, Common Values in International Law: Essays in Honour of Christian Tomuschat, 2006, pp 493–515; Garry, 17 EPL 399 (2001); Rozakis, in Pintens et al, eds, Feestbundel voor Hugo Vandenberghe, 2007; and Vajić, in Kohen, ed, Liber Amicorum Lucius Caflisch 2007.

  • 253 See, eg, Press releases: ECHR 086 (2021), 16 March 2021 (concerning Armenia v Azerbaijan); ECHR 276 (2020) 6 October 2020 (concerning Armenia v Turkey); ECHR 116 (2022) 1 April 2022 (concerning Russian military intervention in Ukraine).

  • 254 See the Izmir and Brighton Declarations, in section 7, p 182. See, for statistics concerning interim measures, the Court’s website at: http://www.echr.coe.int. Expulsion under the Dublin Regulations also gave rise to large numbers of requests being made during this period; see MSS v Belgium and Greece No 30696/09 (2011) GC. To ensure consistency, the handling of requests has been centralized within the Court and decisions are taken by a duty judge specially appointed by the President: Rule 39(4).

  • 255 See the Statement on Requests for Interim Measures issued by the President on 11 February 2011, doc GT-GDR-C(2012)005.

  • 256 See, for an early example, the indication of the old Court that extradition be deferred while Strasbourg proceedings were pending in Soering v UK No 14038/88 (1989) PC.

  • 257 Cruz Varas and Others v Sweden No 15576/89 (1991) PC.

  • 258 Nos 46827/99 and 46951/99 (2005) GC. See Tams, 63 ZAORV 681 (2003).

  • 259 See, eg, Olaechea Cahuas v Spain No 24668/03 (2006); Paladi v Moldova No 39806/05 (2009) GC; Abdulkhakov v Russia No 14743/11 (2012); Al-Saadoon and Mufdhi v United Kingdom No 61498/08 (2010) paras 151–166. See, by contrast, where no breach of Article 34 was found, Hamidovic v Italy No 31956/05 (2011) DA.

  • 260 M A v France No 9373/15 (2018); see further, in the context of Article 13, Shamayev and Others v Georgia and Russia No 36378/02 (2005) para 460.

  • 261 Two prominent examples, in addition to Mamatkulov, are Čonka and Others v Belgium No 51564/99 (2001) DA (where there was allegedly a breakdown in communication) and Aoulmi v France No 50278/99 (2006), though it must be added that, in each case, the failure to abide by the interim measure took place before the Court’s ruling in Mamatkulov. For other examples of non-compliance in deportation/extradition cases leading to a violation of Article 34, see Shamayev and Others v Georgia and Russia No 36378/02 (2005), concerning the extradition of Chechen applicants from Georgia to Russia; Mostafa and Others v Turkey No 16348/05 (2008); Muminov v Russia (no violation) No 42502/06 (2008); Ben Khemais v Italy No 246/07 (2009); Trabelsi v Italy No 50163/08 (2010); Mannai v Italy No 9961/10 (2012); Labsi v Slovakia (expulsion to Algeria) No 33809/08 (2012); and Abdulkhakov v Russia (kidnapping and secret transfer to Tajikistan) No 14743/11 (2012). Instances of non-compliance in areas other than removal cases include Paladi v Moldova No 39806/05 (2009) GC; Aleksanyan v Russia No 46468/06 (2008); Shtukaturov v Russia No 44009/05 (2008); and Makharadze and Sikharulidze v Georgia No 35254/07 (2011).

  • 262 See, eg, Mannai v Italy, n 261, and Labsi v Sklovakia, n 261.

  • 263 As in the Paladi case mentioned in section 2.XII, p 137, n 178. The Court took the further step of asking the Turkish authorities to delay the detention of a number of applicants who had Wernicke-Korsakoff syndrome, at least until they had been examined by a team of medical experts and a delegation of judges sent by the Court: Gürbüz v Turkey No 26050/04 (2005) and Tekin Yildiz v Turkey No 22913/04 (2005). In Ensslin and Others No 7572/76 (1978) DA, the former Commission also invoked Rule 36 (as it then was) to send a delegation prior to admissibility to Stammheim prison, Stuttgart, to investigate the alleged suicides of the applicants. In admissible cases, such a step would now be taken pursuant to Article 38 of the Convention—see section 3.VI, pp 153–156 on fact-finding.

  • 264 Aleksanyan v Russia No 46468/06 (2008); the Court requested the authorities to secure treatment in a specialized hospital for an inmate suffering from AIDS; also Makharadze and Sikharulidze v Georgia No 35254/07 (2011).

  • 265 Öcalan v Turkey No 46221/99 (2005) GC; see press release of 30 November 1999.

  • 266 Ilascu and Others v Moldova and Russia No 48787/99 (2004) paras 10 and 11 GC.

  • 267 Eg Klimov v Russia No 54436/14 (2016) para 5.

  • 268 Mamatkulov and Askarov v Turkey Nos 46827/99 and 46951/99 (2005) para 6 GC.

  • 269 Eg D v UK No 30240/96 (1997); N v UK No 26565/05 (2008) GC; Paposhvili v Belgium No 41738/10 (2016) para 3 GC.

  • 270 See the Press release ‘Requests for interim measures concerning the situation at the borders with Belarus’, ECHR 372 (2021), 6 December 2021.

  • 271 No 39806/05 (2009) GC; Prezec v Croatia (unilateral declaration by the government) No 7508/05 (2008); Tehrani and Others v Turkey Nos 32940/08 et al (2010); see also Salakhov Islyamova v Ukraine No 28005/08 (2013).

  • 272 Othman (Abu Qatada) v United Kingdom No 8139/09 (2012); allegation that the applicant would be tried on the basis of statements by co-accused adduced through torture and that he would thus be subject to a flagrant violation of Article 6; see Soering v United Kingdom No 14038/88 (1989) para 113 PC.

  • 273 Hague Convention on International Child Abduction (1980); Neulinger and Shuruk v Switzerland No 41615/07 (2010) GC; B v Belgium No 4320/11 (2012).

  • 274 No 46221/99 (2005) GC. See also Ch 9, section 5.IV, pp 480–489.

  • 275 See, eg, the Press release (ECHR 042 (2022) 8 February 2022) concerning the case Wróbel v Poland No 6904/22 (2022).

  • 276 No 39793/17 (2017) DA. See also the Court’s press releases of 9, 13, and 19 June 2017.

  • 277 See also Lambert v France No 46043/14 (2015) para 4 GC.

  • 278 No 6339/05 (2007) GC (the relevant British law required the continued consent of both gamete providers for the storage of the embryos (see para 38 of the judgment)).

  • 279 See further the Council of Europe Platform to promote the protection of journalism and safety of journalists, available at: http://www.echr.coe.int.

  • 280 Press release ECHR 084 (2022), 10 March 2022.

  • 281 Available on the Court’s website at: http://www.echr.coe.int.

  • 282 I v Sweden No 61204/09 (2013) paras 40–46. The case concerned the return of a person of Chechen origin to Russia.

  • 283 See O’Boyle and Brady, Liber Amicorum, Anatoly Kovler, 2012 and 4 EHRLR 378–391 (2013). Leach et al, Report by the Human Rights and Social Justice Research Institute, London Metropolitan University, On Fact-Finding by the ECHR, 2009; Costa, in Mélanges en l’honneur de JP Puissochet, 2008, pp 47–56. Chernishova and Vajić, Mélanges Christos L Rozakis, 2011, pp 47–79; Erdal and Bakirci, Article 3 of the ECHR: A Practitioner’s Handbook, OMCT Handbook Series, 2006, pp 237–265.

  • 284 Erdoğan v Turkey No 19807/92 (2006) paras 71–73.

  • 285 See eg, Peers v Greece No 28524/95 (2001) and Valašinas v Lithuania No 44558/98 (2001).

  • 286 No 5310/71 (1978) PC.

  • 287 No 48787/99 (2004) GC.

  • 288 No 13255/07 (2009) DA.

  • 289 Since the Convention institutions were set up, there have been around 95 fact-finding missions. The Court has become a reluctant in situ fact-finder. See, for discussion of the reasons for this, O’Boyle and Brady, 4 EHRLR 378–391 (2013). Chernishova and Vajić note that remarkably there has not yet been a fact-finding in any Russian case concerning the events in the Northern Caucasus region of Russia, notwithstanding the seriousness of the allegations being examined and the large number of judgments in Article 2 and 3 cases against Russia: Chernishova and Vajić, Mélanges Christos L Rozakis, 2011, pp 64–65. A fact-finding took place in Strasbourg in the ‘secret rendition’ cases of Al Nashiri v Poland No 28761/11 (2012) and Husayn (Abu Zubaydah) v Poland No 7511/13 (2013), press release of 3 December 2013. The most recent fact-finding took place in Strasbourg in June 2016 in the Georgia v Russia (II) No 38263/08 (2021) GC) case.

  • 290 See, as regard both points, Tanlı v Turkey No 26129/95 (2001). The Court usually asks for the national investigation file to be forwarded in such cases. See Leach et al, Report by the Human Rights and Social Justice Research Institute, London Metropolitan University, On Fact-Finding by the ECHR, 2009.

  • 291 Ahmed Ali v Netherlands and Greece No 26494/09 (2012) DA; Ali Gedi and Others v Austria Nos 61567/10 et al (2011) DA.

  • 292 Sejdić and Finci v Bosnia and Herzegovina Nos 27996/06 and 34836/06 (2009) para 44 GC.

  • 293 Parti Nationaliste Basque—Iparralde Regional Organisation v France No 71251/01 (2007).

  • 294 MSS v Belgium and Greece No 30696/09 (2011) GC; also, Hirsi Jamaa and Others v Italy No 27765/09 (2012) GC.

  • 295 See, inter alia, Iacov Stanciu v Romania No 35972/05 (2012) and Plotnicova v Moldova No 38623/05 (2012).

  • 296 No 57325/00 (2007) GC; also, amongst many authorities, S and Marper v UK Nos 30562/04 and 30566/04 (2008) GC.

  • 297 El-Masri v the former Yugoslav Republic of Macedonia No 39630/09 (2012), paras 154–167 GC.

  • 298 For the investigation procedure, see the Annex to the Rules of Court (concerning investigations).

  • 299 Rule A2(1). The President of the Chamber may grant leave to third parties to take part in an investigative measure, although this has not yet occurred (Rule A1(6)).

  • 300 Rule A2(2). This rule should be read in conjunction with Rule 44A, which imposes a general duty on the parties to cooperate fully with the Court. See also Rules 44B and C.

  • 301 For a detailed account of such instances, see the Report of the Committee on Legal Affairs and Human Rights of the Assembly, Pourgourides, Member States’ Duty to Co-operate with the European of Human Rights paras 18 ff, 9 February 2007.

  • 302 Rule A4(2).

  • 303 Rule A1(5).

  • 304 Rule A7(1–5).

  • 305 Rule A7(5).

  • 306 Rule A7(3).

  • 307 Rule A8. Corrections may be made by the parties but in no case may such corrections affect the sense and bearing of what was said: Rule A8(3).

  • 308 See, eg, Taniş and Others v Turkey No 65899/01 (2005) para 160, where the Commanding Officer would not appear to give evidence in a disappearance case before the delegates and the authorities would not submit an unexpurgated version of the investigation file. The Court drew adverse inferences in this case as well as finding a breach of Article 38(1)(a). Cf Musayev and Others v Russia Nos 57941/00 et al (2007) paras 121–124.

  • 309 See Timurtaş v Turkey, No 23531/94 (2000) para 89; Taniş and Others v Turkey No 65899/01 (2005) para 164; Çakıcı v Turkey No 23657/94 para 76 GC; and Imakayeva v Russia No 7615/02 (2006) paras 117–119. Cf Zubayrayev v Russia No 67797/01 (2008) (no violation despite recourse to presumptions) and Tovsultanova v Russia No 26974/06 (2010).

  • 310 No 21894/93 (2005) para 211. See also El-Masri v the former Yugoslav Republic of Macedonia No 39630/09 (2012) paras 152–153 GC; Imakayeva v Russia No 7615/02 (2006).

  • 311 See, on the burden of proof generally, Erdal, 26 ELR, Human Rights Survey 68 (2001) and Kokott, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approaches with Special Reference to the American and German Legal Systems, 1998.

  • 312 See, eg, Yakovenko v Ukraine No 15825/06 (2007) para 83 and Ostrovar v Moldova No 35207/03 (2005) para 80.

  • 313 Nachova v Bulgaria Nos 43577/98 and 43579/98 (2005) para 157 GC.

  • 314 In Ireland v UK No 5310/71 (1978) para 160 PC, the former Court made it clear that it would not rely on the concept that the burden of proof is borne by one of the two governments appearing before it and that its approach was to examine all the material before it, including material obtained proprio motu. Since under the former system the fact-finding had been carried out by the Commission, this approach is understandable. But it was inevitable that the new Court, which must establish the facts for itself, would develop a different approach to the burden of proof.

  • 315 Selmouni v France No 25803/94 (1999) para 87 GC and the authorities cited therein. See also Ch 2, section 3.III, pp 56–57.

  • 316 Nachova and Others v Bulgaria Nos 43577/98 and 43579/98 (2005) para 147 GC.

  • 317 Saadi v Italy No 37201/06 (2008) para 129 GC and N v Finland No 38885/02 (2005) para 167. In this context, the principle of ‘the benefit of the doubt’ in favour of asylum seekers applies. However, an asylum seeker will discharge the burden of proof only if they provide a substantiated account of an individual, and thus a real risk of ill-treatment upon deportation. When this has been done, it is for the government to look into ‘the objective situation in the country of origin concerned’ proprio motu. The fact of past ill-treatment provides a strong indication of a future real risk of treatment contrary to Article 3, in cases in which an applicant has made a generally coherent and credible account of events that is consistent with information from reliable and objective sources about the general situation in the country at issue. In such circumstances, it will be for the government to dispel any doubts about that risk. Similar considerations apply in cases concerning asylum seekers belonging to a targeted group in the country of origin (see JK and Others v Sweden No 59166/12 (2016) paras 91–105 GC).

  • 318 For a good summary of the case law, see El-Masri v the former Yugoslav Republic of Macedonia No 39630/09 (2012) paras 154–167 GC; also Ch 6, section 3.I, pp 249–250.

  • 319 Kurt v Turkey No 24276/94 (1998) para 124 and Çakıcı v Turkey No 23657/94 (1999) GC.

  • 320 Ağdaş v Turkey No 34592/97 (2004).

  • 321 See Ch 11, section 3, pp 516–520.

  • 322 Nachova v Bulgaria Nos 43577/98 and 43579/98 (2005) para 157 GC.

  • 323 See, eg, DH and Others v Czech Republic No 57325/00 (2007) paras 186–189 GC.

  • 324 Merabishvili v Georgia No 72508/13 (2017) paras 310 and 314 GC.

  • 325 First employed in Ireland v UK No 5310/71 (1978) PC. See also, inter alia, Salman v Turkey No 21986/93 (2000) para 100 GC.

  • 326 Ireland v UK No 5310/71 (1978) para 30 PC.

  • 327 Nachova v Bulgaria Nos 43577/98 and 43579/98 (2005) para 147 GC; Mathew v Netherlands No 24919/03 (2005) para 156.

  • 328 Erdogan v Turkey No 19807/92 (2006) para 71.

  • 329 See, eg, the dissenting opinion of eight judges in Labita v Italy No 26772/95 (2000) GC and the dissent of Judge Bonnello in Veznedaroğlu v Turkey No 32357/96 (2000).

  • 330 See, eg, Seagal v Cyprus No 50756/13 (2016) para 121. It is not always clear in the case law when the Court will draw such inferences (see Mehdiyev v Azerbaijan No 59075/09 (2015) para 75, and the dissenting opinion of Judge Sicilianos). See further Kamber, Prosecuting Human Rights Offences: Rethinking the Sword Function of Human Rights Law, 2016, pp 79–85.

  • 331 See Leach, Hardman, Stephenson, and Blitz, Responding to Systematic Human Rights Violations—An Analysis of Pilot Judgments of the European Court of Human Rights and their Impact at National Level, 2010; Pilot Judgment Procedure in the European Court of Human Rights, 3rd Informal Seminar for Government Agents, Warsaw (2009); Colendra, 7 HRLR 397 (2007); Garlicki, in Caflisch et al, eds, Liber Amicorum Luzius Wildhaber, 2007, pp 177–192; Leach, EHRLR 148 (2005).

  • 332 The procedure is governed by Rule 61 of the Rules of Court; see also The Pilot Judgment Procedure, Information Note issued by the Registrar, available on the Court’s website at: http://www.echr.coe.int.

  • 333 Position Paper of the European Court of Human Rights on proposals for reform of the ECHR and other measures, CDDH GDR (2003)024, 26 September 2003, paras 43–46.

  • 334 See The Pilot Judgment Procedure, Information Note issued by the Registrar, available on the Court’s website at: http://www.echr.coe.int, n 332, para 6.

  • 335 No 31443/96 (2004) GC. See Degener and Mahoney, in Hartig, ed, Recueil à la mémoire de Wolfgang Strasser, 2007, pp 173–209.

  • 336 Wolkenberg and Others v Poland No 50003/99 (2007) DA.

  • 337 No 35014/97 (2006) GC. Since the Broniowski judgment, the procedure has developed gradually. During the first five years (2004–2009) only five pilot judgments were delivered. Thereafter, as the procedure gained wide acceptance, the Court has had more frequent recourse to it.

  • 338 Hutten-Czapska v Poland No 35014/97 (2008) GC and the separate opinions of Judges Zagrebelsky, Jaeger, and Ziemele for critical remarks on the settlement.

  • 339 See, eg, Xenides-Arestis v Turkey No 46347/99 (2005) and Scordino v Italy (No 1) No 36813/97 (2006) GC. On the proposals made by the Court under Article 46, see section 5, pp 174–176.

  • 340 Committee of Ministers’ Resolution (2004) 3 on Judgments Revealing an Underlying Systemic Problem.

  • 341 Review of the Working Methods of the European Court of Human Rights, December 2005, pp 37–38.

  • 342 Report of the Group of Wise Persons to the Committee of Ministers, Council of Europe, November 2006 at paras 100–105.

  • 343 See, eg, the Brussels Declaration, p 4.

  • 344 Garlicki, in Caflisch et al, eds, Liber Amicorum Luzius Wildhaber, 2007, p 191.

  • 345 See, in this context, Judge Zagrebelsky’s dissenting opinion in Lukenda v Slovenia No 23032/02 (2005).

  • 346 See the arguments of the Italian Government in Sejdovic v Italy No 56581/00 (2006) GC.

  • 347 The Court has proposed to go even further in tackling repetitive complaints. It ‘envisages a practice whereby in relation to clearly repetitive cases the Registry would simply refer a list of cases directly to the government to be settled in an appropriate way. In the absence of any justified objections from the government, failure to provide redress within a fixed period of time would lead to a “default judgment” awarding compensation to the applicant’. Preliminary Opinion of the Court in preparation for the Brighton Conference (20 February 2012) para 21, available on the Court’s website at: http://www.echr.coe.int. The Pilot Judgment Procedure, Information Note issued by the Registrar, available on the Court’s website at: http://www.echr.coe.int.

  • 348 See further Brighton Declaration, para 27.

  • 349 Nos 46852/13 et al (2017) GC.

  • 350 No 40450/04 (2009).

  • 351 For a survey of third-party interventions before the Court, see Mahoney and Sicilianos, in Ruiz Fabri and Sorel, eds, La tiers à l’instance devant les juridictions internationales, 2005; Cichowski, in Christofferson and Madsen, eds, The European Court of Human Rights between Law and Politics, 2011, pp 77–97; Harvey, ‘Third Party Interventions before the ECtHR: A Rough Guide’, Strasbourg Observer (2015); Bürli, Third-Party Interventions before the European Court of Human Rights, 2017. For a practical Guide on third-party interventions, see ENNHRI, Third Party Interventions Before the European Court of Human Rights: Guide for National Human Rights Institutions, 2020, available at: http://www.ennhri.org.

  • 352 This is made easier by the Court’s decision to publish details of most communicated cases on its website, as well as cases accepted for reference to the Grand Chamber by the panel and cases where jurisdiction has been relinquished to the Grand Chamber. See ‘Communicated Cases Collection’ at hudoc.

  • 353 See, eg, the Russian Government’s intervention in Slivenko v Latvia No 48321/99 (2003) GC (concerning the rights of Russian-speaking settled immigrants to regular residence status); or the Cypriot Government’s intervention in Eugenia Michaelidou Developments Ltd and Michael Tymvios v Turkey No 16163/90 (2003); (concerning access to property in northern Cyprus); and the intervention by the Government of Serbia and Montenegro (as it then was) in Markovic v Italy No 1398/03 (2006) GC (concerning the unsuccessful attempts of Serbian nationals to obtain compensation through the Italian courts for an air strike by NATO).

  • 354 See, eg, GJ v Luxembourg No 21156/93 (2000); Krombach v France No 29731/96 (2001); and Fogarty v UK No 37112/97 (2001) GC, where, respectively, the Danish, German, and Irish Governments declined to intervene.

  • 355 The Court has given a wide meaning to the notion of ‘any person concerned who is not the applicant’ in Rule 44(2). It encompasses not only individuals and NGOs, but also government-appointed human rights bodies, such as the Northern Ireland Human Rights Commission. The Council of Europe’s Venice Commission has also been given leave on various occasions (Sejdić and Finci v Bosnia and Herzegovina Nos 27996/06 and 34836/06 (2009) GC; Jeličić v Bosnia and Herzegovina (No 41183/02 (2005) DA). Article 36(3) confers on the Commissioner of Human Rights a right to intervene. If the Commissioner has so far exercised this power sparingly, it can be explained by a certain tension between his traditional statutory role and involvement in cases brought against countries on whose cooperation he depends. See the Commissioner’s website at: http://www.coe.int/en/web/commissioner for cases where he has intervened. A judicious use of the Commissioner’s right to intervene under the Protocol has been already shown to be beneficial to the Court since his specific knowledge of the human rights situation in particular countries, nourished by his contacts with national human rights institutions, place him in a strategic position, especially in pilot cases relating to systemic problems. See MSS v Belgium and Greece No 30696/09 (2011) GC. Permission has also been granted to the UN Commissioner for Human Rights (El-Masri v The Former Yugoslav Republic of Macedonia No 39630/09 (2012) GC) and the United Nations High Commissioner for Refugees (Hirsi Jamaa and Others v Italy No 27765/09 (2012) GC). The Court has not yet decided the general question whether it would be open to a non-state party to intervene in proceedings. In Nizomkhon Dzhurayev v Russia No 31890/11 (2012) (Article 3 case concerning forcible transfer, communicated in 2012), Tajikistan was refused permission by the Section to intervene. It remains to be seen whether permission would be given, eg, to the Council of Europe monitoring bodies such as ECRI or the European Committee of Social Rights or the CPT. It can be argued that the Court is able to have recourse to their reports when examining cases, so intervention is not necessary. PACE has not yet sought to intervene, but in the El-Masri case the President refused permission to the Rapporteur on extraordinary renditions (Dick Marty), whose reports were eventually used by the Court to establish the facts in the case.

  • 356 The UK has been a frequent intervener on this ground. See, eg, its interventions in Association SOS Attentats and De Boëry v France No 76642/01 (2006) GC (in support of the contention that heads of state in office enjoyed immunity ratione personae from civil and criminal proceedings); Kyprianou v Cyprus No 73797/01 (2005) GC (contempt of court); Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi (Bosphorus Airways) v Ireland No 45036/98 (2005) GC (concerning the appropriate level of review to be applied by the Court when the alleged violation results from a state’s legal obligations flowing from membership in another international organization, in this case the European Union). The Copenhagen Declaration placed emphasis on third-party interventions by states parties (paras 38–40).

  • 357 Denmark, Estonia, Poland, Portugal, and the UK.

  • 358 Saadi v Italy No 37201/06 (2008) GC, where the UK Government intervened to argue that the Court should overturn its view in Chahal that, in expulsion cases under Article 3, considerations relating to national security were not to be taken into account once a substantial risk of ill-treatment was established.

  • 359 No 46410/99 (2006) GC.

  • 360 No 27510/08 (2015) GC.

  • 361 Adali v Turkey No 38187/97 (2005). The applicant, the widow of the deceased, was a Turkish national and the Cypriot Government intervened in support of her.

  • 362 Nos 24724/94 and 24888/94 (1999) GC.

  • 363 No 48898/99 (2003) GC.

  • 364 See, eg, Nikula v Finland No 31611/96 (2002) (intervention by Interights); Hugh Jordan v UK No 24746/94 (2001) (intervention by the Northern Ireland Human Rights Commission); Pretty v UK No 2346/02 (2002) (intervention by the Voluntary Euthanasia Society and the Catholic Bishops’ Conference of England). See further Mahoney and Sicilianos, in Ruiz Fabri and Sorel, eds, La tiers à l’instance devant les juridictions internationales, 2005; and Leach, Taking a Case to the European Court of Human Rights, 2nd edn, 2005, pp 57–61, for further examples. See also the many interventions by both governments and NGOs in Lautsi v Italy No 30814/06 (2011) GC and in A, B and C v Ireland No 25579/05 (2010) GC.

  • 365 There may be occasional exceptions to this approach, eg where the Court seeks information in an expulsion case about conditions in another country.

  • 366 See, eg, McCann and Others v UK No 18984/91 (1995) para 5 GC.

  • 367 See also the five interventions in Tysiac v Poland No 5410/03 (2007), concerning the inability of a woman to obtain an abortion in circumstances where, it was held, domestic law provided for that possibility.

  • 368 No 25579/05 (2010) GC.

  • 369 This has not yet happened.

  • 370 See, eg, the verbatim record of the hearing of 24 November 1992 in Brannigan and McBride v UK Nos 14553/89 and 14554/89 (1993) p 16 PC where the government complained that the interveners had widened the scope of the case.

  • 371 Nos 7601/76 and 7806/77 (1981) para 8 PC. In Andrejeva v Latvia No 55707/00 (2009) GC, the Court invited the Russian and Ukrainian Governments to intervene, the applicant having worked in both countries. The issue concerned a pension dispute. The invitation was not accepted.

  • 372 Nos 71412/01 and 78166/01 (2007) GC.

  • 373 See the Court’s Practice Direction on just satisfaction claims (28 March 2007) for a summary of the principles that govern, available on the Court’s website at: http://www.echr.coe.int.

  • 374 For commentaries on the Court’s practice, see Shelton, Remedies in International Human Rights Law, 2nd edn, 2005, pp 294 ff and 3rd edn, 2015, pp 205 ff; Bernhardt, Schachter Collection, p 243; Costa, in Fairgrieve et al, eds, Tort Liability of Public Authorities in Comparative Perspective, 2002; Myjer, in Vandenberghe et al, eds, Property and Human Rights, 2006; Leach, Taking a Case to the European Court of Human Rights, 2nd edn, 2005, pp 397 ff, and 4th edn, 2017, pp 598 ff; Loucaides, 2 EHRLR 182 (2008); and Reid, A Practitioners Guide to the ECHR, 4th edn, 2012, pp 841–847 and 850. For a highly critical view of the case law on Article 41, see Tavernier, 72 RDH 945 (2007).

  • 375 Generally, where there are multiple applicants, the Court has indicated that the awards to each applicant should be lower, although it has also indicated that in a particular case there might also be elements that justified a higher award. For the Court, the fact that a single set of proceedings with a shared objective had been brought alleviated the inconvenience and uncertainty experienced on account of the delay and so meant a reduction in the amount of the award: Arvanitaki-Roboti and Others v Greece No 27278/03 (2008) GC (91 applicants complaining of length of civil proceedings) paras 29–32. Also, Selahattin Çetinkaya and Others v Turkey No 31504/02 (2009), where a joint sum was awarded to a large number of applicants who were heirs to the original party to the national proceedings.

  • 376 This was also recommended by the Woolf Report (the Review of the Working Methods of the European Court of Human Rights, December 2005). See p 41 of the report, available at: http://www.echr.coe.int.

  • 377 Barberà, Messegué and Jabardo v Spain Nos 10588/83 et al (1994) para 17 PC.

  • 378 Mikheyev v Russia No 77617/01 (2006) para 155. There are exceptions to this rule. In a series of Italian cases concerning prolonged inability to secure the eviction of tenants from the applicants’ flats, the Court stressed that the breach of the Convention by the state was of a procedural nature and that any pecuniary damage stemmed from the tenants’ unlawful conduct. The Court thus considered that a possibility of bringing an action in the civil courts against the applicants’ former tenants for any damage caused by their conduct, and against the state for its failure to secure evictions, was the most appropriate means of reparation. It therefore rejected the applicant’s claim for just satisfaction (eg Lo Tufo v Italy No 64663/01 (2005) paras 66–69). See also Denisova and Moiseyeva v Russia No 16903/03 (2011).

  • 379 Burdov v Russia No 33509/04 (2009) para 156; Oyal v Turkey No 4864/05 (2010); Mikheyev v Russia No 77617/01 (2006) para 155.

  • 380 Papamichalopoulos and Others v Greece No 14556/89 (1995) para 34.

  • 381 Scozzari and Giunta v Italy Nos 39221/98 and 41963/98 (2000) paras 248–250 GC.

  • 382 See, eg, Vistiņŝ and Perepjolkins v Latvia No 71243/01 (2012) GC and, as regards just satisfaction, see ibid No 71243/01 (2014) GC.

  • 383 Rule 75(4). See the section on friendly settlement in this chapter, section 2.XII, pp 135–139. The rule of confidentiality of friendly settlement negotiations is also applicable in the context of the Article 41 proceedings (eg, Čapský and Jeschkeová v Czech Republic Nos 25784/09 and 36002/09 (2017) paras 15–23).

  • 384 Noreikienė and Noreika v Lithuania No 17285/08 (2016) para 6.

  • 385 See Broniowski v Poland No 31443/96 (2004) GC.

  • 386 Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v Bulgaria Nos 412/03 and 35677/04 (2009); Muminov v Russia No 42502/06 (2010).

  • 387 See section 5, pp 172–176.

  • 388 Eg in Dickson v UK No 44362/04 (2007) para 88 GC, the Court refused to order the government to provide artificial insemination facilities to a prisoner, despite having found that the failure of the UK prison authorities was a breach of his and his wife’s Article 8 rights. On the other hand, in Association ‘21 December 1989’ and Others v Romania Nos 33810/07 and 18817/08 (2011) para 202, the Court indicated under Article 41 that the respondent state must take the necessary measures to expedite the investigations into the murder of the applicants’ relative.

  • 389 Rule 60 is supplemented by the Practice Direction on just satisfaction claims (28 March 2007).

  • 390 See, eg, Nasri v France No 19465/92 (1995) para 49. See Rule 60 of the Rules of Court. This should not be confused with a situation in which an applicant makes a non-pecuniary claim but fails to specify it. In such instances, if the Court finds that they have sustained non-pecuniary damage, it is entitled to make an appropriate award (eg Ābele v Latvia Nos 60429/12 and 72760/12 (2017) paras 84–86).

  • 391 Nagmetov v Russia No 35589/08 (2017) paras 74–82 GC.

  • 392 See, eg, Lapshin v Azerbaijan No 13527/18 (2021) para 129; A and B v Georgia No 73975/16 (2022) para 59.

  • 393 See, eg, in Sahin v Germany No 30943/96 (2003) para 105 GC and Adam v Romania No 45890/05 (2009). They are also only recoverable insofar as they relate to the violation found: see Beyeler v Italy No 33202/96 (2002) GC; Adam v Romania, ibid.

  • 394 Associated Society of Locomotive Engineers and Firemen (ASLEF) v UK No 11002/05 (2007) para 60.

  • 395 Steel and Morris v UK No 68416/01 (2005) para 112 (and references therein) and Bhandari v UK No 42341/04 (2007) paras 28–30.

  • 396 See, eg, Salomonsson v Sweden No 38978/97 (2002); Fretté v France No 36515/97 (2002) para 56; Avkhadova and Others v Russia No 47215/07 (2013).

  • 397 King v UK No 13881/02 (2004) para 52; Associated Society of Locomotive Engineers and Firemen (ASLEF) v UK No 11002/05 (2007) para 58; IJL, GMR and AKP v UK Nos 29522/95 et al (2001).

  • 398 A and Others v UK No 3455/05 (2009) para 256 GC.

  • 399 Pisano v Italy No 36732/97 (2002) paras 51–56 GC, although the same rules on submitting specific claims and schedules of costs applies: also Sisojeva and Others v Latvia No 60654/00 (2007) paras 133 and 134 GC. Cf Paez v Sweden No 29482/95 (1997), where the former Court struck out an Article 3 case concerning expulsion to Peru after the applicant had been allowed to stay in Sweden and after extensive examination of the case by the Commission which expressed the view that there would be no violation in sending him back. At that time, the rules did not allow an award in such circumstances.

  • 400 See Reid, A Practitioners Guide to the ECHR, 6th edn, 2019, chs 85 and 86, for detailed tables of awards made by the Court for pecuniary and non-pecuniary loss.

  • 401 Imakayeva v Russia No 7615/02 (2006) para 213; Çakıcı v Turkey No 23657/94 (1999) para 127 GC.

  • 402 Lustig-Prean and Beckett v UK Nos 31417/96 and 32377/96 (2000); Young and Others v UK Nos 7601/76 and 7806/77 (1982) para 11.

  • 403 No 4864/05 (2010) (€300,000 pecuniary damages and €78,000 non-pecuniary damages).

  • 404 See, eg, Beyeler v Italy No 33202/96 (2002) GC; Brumărescu v Romania No 28342/95 2001-IGC; Iatridis v Greece (Art 41) No 31107/96 2000-XI GC; James and Others v UK No 8793/79 (1986) PC; Lithgow and Others v UK Nos 9006/80 et al (1986) PC; Papamichalopoulos and Others v Greece No 14556/89 (1995).

  • 405 See, eg, in Former King of Greece and Others v Greece No 25701/94 (2002) GC (see also the principal judgment No 25701/94 (2000), about the expropriation of the former king’s properties after his deposition; the final award ran to over €13 million).

  • 406 Former King of Greece, ibid para 87.

  • 407 No 58858/00 (2009) paras 98–107 GC.

  • 408 See, eg, Bukovčanová and Others v Slovakia No 23785/07 (2016) para 51.

  • 409 Former King of Greece and Others v Greece No 25701/94 (2002) GC, para 73; Beyeler v Italy No 33202/96 (2002) GC (just satisfaction).

  • 410 Pasculli v Italy No 36818/97 (2007).

  • 411 The case law for loss of opportunity is not always consistent, eg, Bönisch v Austria No 8658/79 (1986); Weeks v UK No 9787/82 (1988) para 13 PC; and H v UK No 9580/81 (1988) PC, where awards under this head were made. In other cases, the Court has refused to speculate whether there were such losses: see, eg, Perks and Others v UK Nos 25277/94 et al (1999), where the applicant was unrepresented before a magistrates’ court which sentenced him to a prison term.

  • 412 Eg awards in Russian cases, for a substantive violation of Article 2 (disappearance) coupled with violations of Articles 5 and 13 are around €60,000: Alpatu Israilova v Russia No 15438/05 (2013); Vakhayeva v Russia No 27368/07 (2012); Ilayeva and Others v Russia No 27504/07 (2012); Umarova and Others v Russia No 25654/08 (2012); also Bitiyeva and X v Russia Nos 57953/00 and 37392/03 (2007) (the death of four family members gave rise to an award of €85,000). In Mikheyev v Russia No 77617/01 (2006), the Court awarded €120,000 in respect of a brutal torture which left the applicant paralysed. In Abuyeva v Russia No 27065/05 (2010), which concerned the deaths of 24 relatives caused by the shelling of a village in Chechnya, the Court awarded €1.72 million.

  • 413 No 7334/13 (2016) para 181 GC.

  • 414 Mozharov and Others v Russia Nos 16401/12 et al (2017) para 14.

  • 415 See Centro Europa 7 SRL and Di Stefano v Italy No 38433/09 (2012) GC; Rock Ruby Hotels Ltd v Turkey (just satisfaction) No 46159/99 (2010).

  • 416 See, eg, IK v Austria No 2964/12 (2013); Barborski v Bulgaria No 12811/07 (2013), where a period of detention found unlawful by the Court had been deducted from the remainder of the sentence. This approach is now uncommon. It can be said that there is almost a presumption that an award will be made, even in cases involving terrorism: A and Others v United Kingdom No 3455/05 (2009) GC. Making no award has come in for robust criticism by some of the judges, eg Judge Bonello’s partly dissenting opinion in Nikolova v Bulgaria No 31195/96 (1999) GC.

  • 417 For Article 5, see Thompson v UK No 36256/97 (2004) para 50. For Article 6, the standard formula is to state that it is impossible to speculate as to the outcome of the criminal trial had the violation of Article 6(1) of the Convention not occurred (see, eg, Findlay v UK No 22107/93 (1997) paras 85 and 88; Dvorski v Croatia No 25703/11 (2015) para 117 GC).

  • 418 See, eg, Hirst v UK (No 2) No 74025/01 (2005) para 60 GC; see also Piper v the United Kingdom No 44547/10 (2015) para 73.

  • 419 Kalló v Hungary No 30081/02 (2006) para 35; and, by contrast, Vaščenkovs v Latvia No 30795/12 (2016) para 56.

  • 420 See, eg, McCann and Others v UK No 18984/91 (1995) para 219 GC. Cf Del Río Prada v Spain No 42750/09 (2013) GC, where considerable damages were awarded to a convicted terrorist for breaches of Articles 5 and 7.

  • 421 Allenet de Ribemont v France No 15175/89 (1995) para 65.

  • 422 No 41488/98 (2000) para 96.

  • 423 See also the earlier case of Selmouni v France No 25803/94 (1999) paras 132 and 133 GC, where the Court made a similar observation and finding with regards to sums awarded in respect of a violation of Article 3.

  • 424 Vgt Verein gegen Tierfabriken (VGT) v Switzerland (No 2) No 32772/02 (2009) paras 85–86 GC. See Ch 4, section 3, pp 196–198.

  • 425 Within the framework of the Brussels conference the states discussed, but eventually rejected, the idea of empowering the Court to make binding directions.

  • 426 No 5310/71 (1978) para 187 PC.

  • 427 Campbell and Cosans v UK Nos 7511/76 and 7743/76 (1982) para 16; McGoff v Sweden No 9017/80 (1984) para 31; Gillow v UK No 9063/80 (1986) para 9.

  • 428 See, eg, Former King of Greece and Others v Greece No 25701/94 (2002) para 77 GC; Brumărescu v Romania No 28342/95 (2001) GC, at points 1 and 2 of the operative part.

  • 429 No 71503/01 (2004) GC.

  • 430 No 48787/99 (2004) GC, at point 22 of the operative part.

  • 431 No 42750/09 (2013) GC, at point 3 of the operative part.

  • 432 No 21722/11 (2013), at point 9 of the operative part.

  • 433 Yetiş and Others v Turkey No 40349/05 (2010).

  • 434 Sinan Işık v Turkey No 21924/05 (2010).

  • 435 Cahıt Demırel v Turkey No 18623/03 (2009); also Dimitrov and Hamanov v Bulgaria Nos 48059/06 and 2708/09 (2011) and Finger v Bulgaria No 37346/05 (2011) (to introduce remedies for length of civil and criminal proceedings).

  • 436 Faimblat v Romania No 23066/02 (2009).

  • 437 Oleksandr Volkov v Ukraine No 21722/11 (2013).

  • 438 Al-Saadoon and Mufdhi v UK No 61498/08 (2010).

  • 439 Abuyeva and Others v Russia No 27065/05 (2010).

  • 440 Emre v Switzerland No 5056/10 (2011).

  • 441 Oleksandr Volkov v Ukraine No 21722/11 (2013).

  • 442 No 5829/04 (2011) paras 250–261.

  • 443 No 71503/01 (2004) GC.

  • 444 See, eg, Kurić and Others v Slovenia No 26828/06 (2012) GC.

  • 445 See, eg, Savriddin Dzhurayev v Russia No 71386/10 (2013) and the examples set out in nn 430–432.

  • 446 ‘Admittedly, subject to monitoring by the Committee of Ministers, the respondent State in principle remains free to choose the means by which it will discharge its obligations under Article 46 § 1 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment’: Verein gegen Tierfabriken Schweiz (VGT.) v Switzerland (No 2) No 32772/02 (2009) para 89 GC; also Sejdovic v Italy No 56581/00 (2006) GC.

  • 447 For these judgments, see section 3.VIII, pp 159 ff.

  • 448 No 36455/02 (2006) paras 41–44.

  • 449 Other examples include Malahov v Moldova No 32268/02 (2007) para 47 (that the applicant’s appeal should be heard) and Bujniţa v Moldova No 36492/02 (2007) para 29 (that the applicant’s final acquittal be confirmed by the authorities and his conviction in breach of the Convention to be erased).

  • 450 Verein gegen Tierfabriken Schweiz (VGT) v Switzerland (No 2) No 32772/02 (2009) para 89 GC.

  • 451 Krasniki v Czech Republic No 51277/99 (2006) para 93. For instances where it has been done under Article 46, see Sejdovic v Italy No 56581/00 (2006) paras 119 ff GC; Öcalan v Turkey No 46221/99 (2005) para 210 GC. Prior to such cases, such indications were only noted under Article 41: Gençel v Turkey No 53431/99 (2003) para 27; Tahir Duran v Turkey No 40997/98 (2004) para 23; Somogyi v Italy No 67972/01 (2004) para 86. Exceptionally, in the case of Henryk Urban and Ryszard Urban v Poland No 23614/08 (2010) the Court explicitly stated that a re-opening of the case at the domestic level was not needed (at para 66).

  • 452 See, eg, Öcalan v Turkey No 46221/99 (2005) para 210 GC.

  • 453 Bochan v Ukraine (No 2) No 22251/08 (2015) paras 60–65 GC (civil context); Moreira Ferreira v Portugal (No 2) No 19867/12 (2017) paras 83–84 GC (criminal law context).

  • 454 Oberschlick v Austria No 11662/85 (1991) para 65 PC.

  • 455 No 76091/01 (2007) para 34.

  • 456 No 27527/03 (2007) para 74, as well as points 5 and 6 of the operative part of the judgment.

  • 457 No 4864/05 (2010). For an indication of both individual and general measures, see Driza v Albania No 33771/02 (2007) and Dybeku v Albania No 41153/06 (2007).

  • 458 No 5056/10 (2011).

  • 459 See Sidabras and Others v Lithuania Nos 50421/08 and 56213/08 (2015) paras 101–105, with further references.

  • 460 Article 46(4) reads as follows: ‘If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two-thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.’

  • 461 See further Sicilianos ‘The role of the European Court of Human Rights in the execution of its own judgments: reflections on Article 46’ in Seibert-Fohr and Villiger, eds, Judgments of the European Court of Human Rights: effects and implementation, 2014, 285–315.

  • 462 No 28749/18 (2019). See the Committee of Ministers Interim Resolution CM/ResDH(2022)21, adopted at the 1423rd meeting (2 February 2022). The case concerns the pre-trial detention of a human rights activist in Turkey. In its judgment, the Court also made an Article 46 indication requesting Mr Kavala’s immediate release.

  • 463 No 15172/13 (2014). See also Ilgar Mammadov v Azerbaijan (Article 46 § 4) No 15172/13 (2019) GC.

  • 464 In a separate case (Ilgar Mammadov v Azerbaijan (No 2) No 919/15 (2017)) the Court found a violation of Article 6(1) of the Convention in relation to the criminal proceedings leading to the applicant’s conviction in question.

  • 465 For the details on these developments, see Ilgar Mammadov v Azerbaijan (Article 46 § 4) No 15172/13 (2019) paras 39–73 GC.

  • 466 On reform of the Court generally, see n 2; also Reform of the European Human Rights System: Proceedings of the High-level Seminar, Oslo, 2004, Directorate General of Human Rights, Strasbourg: Council of Europe, 2004; Guaranteeing the Effectiveness of the European Convention on Human Rights—Collected Texts, 2004; Leach, 6 EHRLR 725 (2009); O’Boyle and Darcy, 52 GYIL 139 (2009).

  • 467 Memorandum of the President of the Court with a view to preparing the Interlaken Conference 3 July 2009, available at: http://www.echr.coe.int.

  • 468 Memorandum of the President of the Court.

  • 469 The Interlaken Declaration of 19 February 2010, available at: http://www.echr.coe.int.

  • 470 ibid in fine.

  • 471 The issue arises as to whether it is in keeping with the rule of law to seek to give directions to an independent court, even in the course of a generally beneficial reform process. See, eg, the Izmir Declaration (p 5); the Brighton Declaration (para 23); the Brussels Declaration (p 4); and the Copenhagen Declaration (paras 3–4).

  • 472 For reports of the practical measures taken by the Court as a result of the Interlaken process, see The Interlaken Process and the Court, 16 October 2012 and 28 August 2013, available on the Court’s website at: http://www.echr.coe.int.

  • 473 The Explanatory Report, paras 20–33, charts the work on the Protocol from the Rome Ministerial Conference on Human Rights in 2000, which took stock of the Court’s growing caseload, until the opening for signature of the Protocol on 13 May 2004.

  • 474 Article 27 and Explanatory Report, paras 66–67; see section 2.VII, pp 128–129.

  • 475 Article 28 and Explanatory Report, paras 68–72; see section 2.VIII, pp 129–130.

  • 476 Article 35(3)(b) and Explanatory Report, paras 77–85; see Ch 2, section 5.V, pp 79–.

  • 477 Article 23(2).

  • 478 Article 26(2).

  • 479 Article 26(4). This provision responds to the criticism under the system where the state is asked to nominate an ad hoc judge after the proceedings have commenced in full knowledge of the issues involved. See Explanatory Report, para 64.

  • 480 Article 29(1) and (2). In fact, the current practice of the Court has evolved in this direction independently, with issues of admissibility and the merits being decided jointly in one judgment (except for inter-state cases); see section 2.IX, pp 130–131.

  • 481 Article 36(3); see section 3.IX, pp 161–164.

  • 482 Article 59(2).

  • 483 Opened for signature on 24 June 2013. CETS No 213. Entered into force on 1 August 2021.

  • 484 See para 7; also at para 9. The Court in its opinion on the Protocol has also emphasized this point; para 4, available on the Court’s website at: http://www.echr.coe.int.

  • 485 See Article 31(2) of the Vienna Convention on the Law of Treaties.

  • 486 See the Grand Chamber cases MA v Denmark No 6697/18 (2021) GC and Grzęda v Poland No 43572/18 (2022) GC; see also the Chamber case Lings v Denmark No 15136/20 (2022).

  • 487 Although it should be noted that in both Grand Chamber cases where the Court referred to this reference in Protocol 15, it finally found violations of the Convention.

  • 488 See Ch 1, section 4.VII, pp 14–17.

  • 489 See section 6.I, pp 177–178.

  • 490 Article 3 amending Article 30 of the Convention, see section 2.X, pp 131–135. See also the Explanatory Report, paras 17–19.

  • 491 See Ch 2 section 5.V, pp 79–84.

  • 492 Article 2(1) and Article 8 (transitional provisions). This effectively extends the retirement age to 74; see section 1.II, pp 110–112.

  • 493 Opened for signature on 2 October 2013, CETS No 214. Entered into force on 1 August 2018. See O’Boyle and Darcy, 52 GYIL 139 (2009), 178–179. Also the Izmir Declaration, para 13 and the Brighton Declaration, para 12(d).

  • 494 Article 1(1). The Protocol is an optional protocol, which is in force only for the countries that have ratified it; Article 8(1). No reservations are permitted: Article 9.

  • 495 Article 1(2) and (3). Requests for in abstracto review of legislation are excluded. Explanatory Report, para 10.

  • 496 Article 2(1) and (2).

  • 497 Article 2(2) and (3). The Panel shall include ex officio the judge elected in respect of the relevant contracting party.

  • 498 Article 4(1) and (3) and Article 5. Judges can deliver a separate opinion if there is no unanimous view: Article 4(2). Obviously, the value of such an opinion would be seriously undermined were the Court to express its views by a vote of nine/eight. Doubtless, for this reason the Court has referred to its practice of seeking to speak with one voice when issuing advisory opinions requested by the Committee of Ministers. See section 2.XV, pp 144–155 and Opinion of the Court on Protocol 16, para 11.

  • 499 See Rule 94(10). Article 3 confers a right to intervene on the Council of Europe Commissioner for Human Rights and the relevant contracting party. Other contracting parties may also apply or be given leave to take part in the proceedings. Although this provision does not say so explicitly, the individual parties involved in the domestic proceedings would be invited to take part in the proceedings. See the Court’s Opinion on Protocol No 16, para 10, n 498. See also paras 19–21 of the Explanatory Report.

  • 500 Reflection Paper on the proposal to extend the Court’s advisory jurisdiction (available on the Court’s website at: http://www.echr.coe.int).

  • 501 Final Report of the Group of Wise Persons to the Committee of Ministers, Council of Europe, para 81, November 2006 (available on the Court’s website at: http://www.echr.coe.int).

  • 502 Para 3 of the Preamble. It should be noted that this dialogue also operates through the Superior Court Network (SCN) which is, however, limited to the exchange of information. See the Copenhagen Declaration (para 37(b)). On a domestic dialogue, see eg Al-Khawaja and Tahery v United Kingdom Nos 26766/05 and 22228/06 (2011) paras 51–62 GC, referring to the domestic judgments in R v Horncastle and Others [2009] UKSC 14.

  • 503 See further Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights, 2nd edn, 2012; Buergenthal, 79 AJIL 1 (1985).

  • 504 Paragraphs 45–46. The Court also considered that it was ‘rather unlikely’ that a domestic court asking for the Court’s advice would subsequently not follow it; para 7. Of course, the goal of enhancing dialogue would be set back were the national court not to follow the opinion, although its reasons for not doing so would be considered and answered by the Court in any future individual case raising the same issue. In this way, ‘dialogue’ between the courts would be continued.

  • 505 At present, 18 states have ratified the Protocol and seven have signed but not ratified it.

  • 506 Advisory opinion concerning the recognition in domestic law of a legal parent–child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother No P16-2018-001 (2019) GC; Advisory opinion concerning the use of the ‘blanket reference’ or ‘legislation by reference’ technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law No P16-2019-001 (2020) GC; Advisory opinion on the assessment, under Article 3 of Protocol No. 1 to the Convention, of the proportionality of a general prohibition on standing for election after removal from office in impeachment proceedings No P16-2020-002 (2022) GC; Advisory opinion on the applicability of statutes of limitation to prosecution, conviction and punishment in respect of an offence constituting, in substance, an act of torture No P16-2021-001 (2022) GC; Advisory opinion on the difference in treatment between landowners’ associations ‘having a recognised existence on the date of the creation of an approved municipal hunters’ association’ and landowners’ associations set up after that date No P16-2021-002 (2022) GC.

  • 507 Decision on a request for an advisory opinion under Protocol No. 16 concerning the interpretation of Articles 2, 3 and 6 of the Convention No P16-2020-001 (2020) GC.

  • 508 See O’Boyle, The Conscience of Europe, 2010, ch 15, pp 190–201; PACE report of 3 December 2012, ‘The future of the ECtHR and the Brighton Declaration’ AS/Jur (2012)42.

  • 509 For a critical examination of these claims, see Bratza, 5 EHRLR 505–512 (2011).

  • 510 See section 2.VI, pp 126–128.

  • 511 See section 2.XII, pp 135–139.

  • 512 Review of the Working Methods of the European Court of Human Rights (the Woolf Report), December 2005. For developments concerning Rule 47, see section 2.V, pp 125–.

  • 513 See further section 1.I, pp 108–110.

  • 514 For the impressive raft of national measures proposed during the reform process, see Interlaken Declaration, paras 4–5; Izmir Declaration, point B; Brighton Declaration, para 9(c). See also Brussels Declaration, pp 5–7 and Copenhagen Declaration, paras 12–18.

  • 515 See Turgut and Others v Turkey No 4860/09 (2013) DA and Uzun v Turkey No 10755/13 (2013) DA; also Ruminski v Sweden No 10404/10 (2013) DA.

  • 516 Valcheva and Abrashev v Bulgaria Nos 6194/11 and 34887/11 (2013) DA and Balakchiev and Others v Bulgaria No 65187/10 (2013) DA.

  • 517 See further the Final Report of the Group of Wise Persons to the Committee of Ministers, Council of Europe, para 81, November 2006, paras 76–86 (15 November 2006). In a previous edition of this book we identified the EU’s accession to the Convention as an additional element in the further growth and development of the Court’s constitutional role (see further Ch 3, section 7.III of the 3rd edn). However, this process has been halted by the CJEU Opinion 2/13 of 18 December 2014.

  • 518 The final text of the Copenhagen Declaration is available on the Court’s website http://www.echr.coe.int.

  • 519 See the Joint NGO Response to the Draft Copenhagen Declaration, 13 February 2018 (available at: http://www.omct.org/files/2018/02/24721/joint_ngo_response_to_the_copenhagen_declaration___13_february_2018.pdf).

  • 520 See further the CDDH report on the longer-term future of the system of the European Convention on Human Rights (CDDH(2015)R84), 11 December 2015 (available on the CDDH website at: http://www.coe.int).

  • 521 See further Comment from the Court on the report of the CDDH on the longer-term future of the Convention system, February 2016 (available on the Court’s website at: http://www.echr.coe.int).

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