Structural Disobedience

By Helen Küchler

(PhD student and research assistant at the Europa-Institut, Jean-Monnet-Chair for European Law and European Integration of Prof. Dr. Giegerich, LLM)

The Challenge

The European Court of Human Rights (ECtHR) is well known for being the world’s most advanced human rights protection system. However, in recent years, it became the “victim of its own success”.[1] Its famous efficiency is now endangered by the huge backlog of individual complaints; in 2014 there were still 69,900 applications pending.[2] A reform process[3] has been ongoing for five years in order to assure the timely functioning of the system[4] in the future, but a real breakthrough has not yet been achieved.

One reason for the huge number of cases is the structural disobedience of some Member States to the Convention. This “common dysfunction at the national level”[5] causes a large number of identical or at least similar applications, which will be referred to in this paper as “repetitive cases”.[6] This large number of repetitive cases is due to the fact that the individual claimants can only address the concrete violation they are victim of; the structural problem behind the individual violation cannot be tackled by this type of procedure.[7] It would be far more effective to address the source of the human rights violations directly, namely the structural problem itself. This often lies in an administrative practice or law contrary to the Convention. If the ECtHR could abstractly investigate this matter, it could eliminate the cause and therefore solve not only one, but all of the repetitive cases at once. In such an investigation, the Court would need a broader mandate than in the individual application procedure, enabling it to take into account the whole human rights situation in the respective State. Only then could a real reform process be proposed to redress all the individual violations resulting of the structural defect.

The solution provided for in the Convention: The inter-state application

The inter-state application under Art. 33 of the ECHR is the instrument foreseen by the founders to address systematic and massive human rights violations with the aim of reintegrating the responsible State into the Convention system. This complaint has an abstract character,[8] which means that it can be directed straight to the source of multiple human rights violations, law, or administrative practice contrary to the Convention. The concrete individual violations will then only serve as proof of this “pattern or system” of human rights violations in the respective State.[9]

The inter-state claim was initially meant to be the primary enforcement mechanism[10] of the Convention that corresponded to the role accorded to the States by the ECHR’s preamble, which describes the Convention States as “guardians of the European public order”[11] who are guaranteeing a “collective enforcement”[12] of human rights.

This well-meant idea has never worked out in practice though. To this day, there have only been ten situations that have given rise to a total of 27 inter-State claims[13] and the vast majority of these cases have not been initiated in the common interest to uphold the Convention as originally intended by Art. 33 of the ECHR. On the contrary, most of the States were rather pursuing their own political interests with their claims by exploiting the inter-state procedure, especially in bilateral conflicts, for their own ends (e.g. the claims of Cyprus v. Turkey,[14] Georgia v. Russia,[15] and Ukraine v. Russia[16]). The inter-state procedure has therefore been prevented from fulfilling its original task, which is to tackle problems of serious and systematic human rights violations in order “to realise the aims and ideals of the Council of Europe as expressed in its Statute, and to establish a common public order of the free democracies in Europe”.[17] Due to this failure, individuals needed to step in to guarantee the effective enforcement of their Conventions rights, filling the gap left by the reluctant States.[18] This might be one of the reasons why today there is such an overload of individual complaints instead of some focused inter‑State applications directly targeting the systematic failure of some States to apply the Convention.

Possible modifications of Art. 33 of the ECHR

In order to tackle structural human rights problems in certain member states, the full potential of Art. 33 of the ECHR should be realised, as this is the instrument most suited to deal with systematic disobedience. Only Art. 33 of the ECHR allows an abstract evaluation of the whole human rights situation in the respective State, which is the fundamental prerequisite for a reform proposal that could help the concerned State to dissolve its structural problem. Therefore, it is crucial that the potential of Art. 33 of the ECHR is used more often in cases of structural disobedience.

One possibility to achieve this goal would be to force States to take action in cases of systematic violations, for example, by means of a legal duty for States to use Art. 33 of the ECHR if there are enough indications of a dysfunction in a particular national system. One indication might be the number of repetitive cases pending against the respective State. Such a legal duty would push the States to give up their current reluctance based on political and economic motives. It might also motivate the States to act together. In cases of armed conflicts resulting in disastrous human rights situations, States could act together instead of leaving the complaint under Art. 33 of the ECHR to the States involved in the conflict. In the past, such actions shed a bad light on the inter-state procedure, creating the appearance of a conflict of interest.

If such a legal duty did not produce any effects, one could also think about replacing the States by more effective “human rights advocates”,[19] conferring the right of action under Art. 33 of the ECHR to someone else. One option could be to follow the successful example of the European Commission in playing a key role in the treaty violation proceedings in EU law (Art. 258–259 of the TFEU) and substitute the States under Art 33 of the ECHR with a neutral organ of the European Council.[20] Another possibility would be the conferral of this prerogative to NGOs (currently only third parties under Art. 36 of the ECHR) that have already proven themselves to be very active in “address(ing) consistent patterns of gross and reliably attested violations of all human right” under the complaint procedure to the UN Human Rights Council[21]. One could also provide the ECtHR itself with the right to act proprio motu in cases of structural violations.[22]

Alternatives

Currently, none of these modifications has been considered during the reform process, so they are far from being realized. The ECtHR hence developed some alternatives within the existing system in order to address current systematic failures to comply with the ECHR more effectively. First, it developed the pilot-judgment procedure[23] “as a technique of identifying the structural problems underlying repetitive cases against many countries and imposing an obligation on States to address those problems.”[24] Second, the ECtHR uses “individual measures”[25] to guide the Convention states in resolving their systematic problems.[26] Third, the Court wants to use its new advisory jurisdiction[27] “to adopt a larger number of rulings on questions of principle and to set clearer standards for human rights protection in Europe”.[28] This might also help in setting clear standards, which could serve as orientation for the States to restructure their national systems in line with the Convention.[29] Finally, in 2009, the ECtHR adopted a new priority policy, enabling it to deal more rapidly with “cases which disclose the existence of widespread problems”.[30]

Outlook

This creativity of the Court in dealing with structural deficiencies has been widely criticized. This critique is due to the lack of legal basis for many of the adopted measures and it is also based on the fear that the ECtHR might interfere with national sovereignty when it orders structural changes or reforms with the objective of erasing all causes for systematic violations.

For the Court, on the other hand, it is very important to show that it rises to the major challenge embodied in the systematic failure of States to apply the Convention. Systematic disobedience to the Convention is like a “credibility test”[31] for the whole system: it is only if the ECtHR shows that it can effectively deal with them that it will be able to keep its authority and legitimacy in smaller individual cases.[32] Then and only then can the purpose of the whole Convention – the realization of a “European public order”[33] – be achieved.

For the reasons outlined above, and because of repetitive cases are still blocking the Court, the most effective way to deal with serious and systematic human rights violations must be identified and promoted as soon as possible. Thus, this paper wants to trigger a discussion on how the Court could become more effective in the domain of structural human rights violations. Is the inter-state procedure (if modified) the best instrument to tackle this fundamental problem, or should we rather focus on an alternative? Our discussion needs to show that the ECtHR will overcome the challenge of structural disobediences and that the whole system will emerge from this test of credibility even stronger than before.

[1] Helfer. “Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime”, EJIL Vol. 19. no. 1 (2015), p. 125, available under: http://www.ejil.org/pdfs/19/1/181.pdf.

[2] ECtHR, Analysis of statistics 2014, http://www.echr.coe.int/Documents/Stats_analysis_2014_ENG.pdf, p. 4.

[3] Conferences in Interlaken-Izmir-Brighton-Brussels, Protocols No. 14, 15 and 16.

[4] Jahn. “Normative Guidance from Strasbourg through Advisory Opinions”, ZaöRV 2014, p. 822.

[5] ECtHR – Press Unit, Factsheet – Pilot Judgments, http://www.echr.coe.int/Documents/FS_Pilot_judgments_ENG.pdf, p.1.

[6] Ibid. This definition has to be distinguished from another interpretation of “repetitive cases” used by the ECtHR in, for example, the explanation of the Court’s priority policy, http://www.echr.coe.int/Documents/Priority_policy_ENG.pdf, p. 5, where the term only covers cases that have already been treated by the Court in a pilot judgment procedure.

[7] Prebensen. “Inter-state complaints under treaty provisions – The Experience under the European Convention on Human Rights”, in Alfredsson, et al. (eds.) International Monitoring Mechanisms – Essays in Honour of Jacob Th. Möller, 2009, p. 460.

[8] Un véritable „contrôle abstrait de légalité“ : Labayle, in Pettiti/ Decaux/ Imbert (eds.) La Convention européenne des droits de l’homme – Commentaire article par article, Paris 1995, Art. 24 CEDH, p. 576 ; Zwaak, Chapter 1, in Van Dijk, van Hoof, van Rijn, Zwaak (eds.) Theory and Practice of the European Convention on Human Rights, 2006, p. 48.

[9] ECtHR, No. 5310/71, Ireland v. United Kingdom, 18th January 1978, para. 159: “A practice incompatible with the Convention consists of an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system; a practice does not of itself constitute a violation separate from such breaches”.

[10] Pettiti. Le recours interétatiques dans le système de la convention européenne des droits de l’homme, in Bardonnet (ed.), Le règlement pacifique des différends internationaux en Europe : perspectives d’avenir, 1991, p. 333.

[11] ECtHR, No. 25781/94, Cyprus v Turkey, 12.05.2014, Dissenting Opinion of Judge Karakaş, p. 51, Nr.1 (pdf). This denotation is also used in the literature, e.g. by Frowein. “The European Convention on Human Rights as the Public Order of Europe”, in Academy of European Law (ed.) Collected Courses of the Academy of European Law, Vol. 1, Book 2 (1990), p. 281: “guarantors of the European public order”.

[12] Preamble of the ECHR, last recital.

[13] ECtHR, Nos. 176/56, 299/57, 788/60, 3321/67, 3322/67, 3323/67, 3344/67, 4448/70, 5310/71, 5451/72, 6780/74, 6950/75, 8007/77, 25781/94, 9940/82, 9942/82, 9944/82, 9941/82, 9943/82, 34382/97, 13255/07, 38263/08, 61186/09; 20958/14, 43800/14, 49537/14, and 42410/15.

[14] ECtHR, Nos. 6780/74, 6950/75, 8007/77, 25781/94, Cyprus v. Turkey,

[15] ECtHR, Nos. 13255/07, 38263/08, 61186/09, Georgia v. Russia.

[16] ECtHR, Nos. 20958/14, 43800/14, 49537/14, 42410/15, Ukraine v. Russia.

[17] ECtHR, No. 788/60, Austria v. Italy, 11th January 1961, p. 18 (pdf).

[18] The individual complaint procedure became the “royal way” of enforcement: Matscher. Kollektive Garantie der Grundrechte und die Staatenbeschwerde nach der EMRK, in Funk et al. (eds.) Der Rechtsstaat vor neuen Herausforderungen – Festschrift für Ludwig Adamovich zum 70. Geburtstag, 2002, p. 420.

[19] Ermacora. Über die Staatenbeschwerde in Fragen der Menschenrechte, in Mélanges Marcel Bridel- Recueil de travaux publiés par la Faculté de droit, Lausanne 1968, p. 184; Khol. Fragen der Systeme internationaler Verfahren zum Schutze der Menschenrechte und ihrer Konkurrenz, in Mitteldeutscher Kulturrat e. V. (ed.) Deutschland, Europa und die Menschenrechte: zum Internationalen Jahr der Menschenrechte, 1968, p. 166.

[20] Which organ (e.g. the High Commissioner for Human Rights, the Parliamentary Assembly) is most suitable is still vividly discussed: Ermacora. Über die Staatenbeschwerde in Fragen der Menschenrechte, in Mélanges Marcel Bridel- Recueil de travaux publiés par la Faculté de droit, 1968, p. 191; Wittinger, Der Europarat – die Entwicklung seines Rechts und der ”europäischen Verfassungswerte”, 2005, p. 460.

[21] Formerly the 1503 procedure, now Art. 85 ff. Resolution 5/1, Human Rights Council “Institution-building package” (2007).

[22] Kamminga. “Is the European Convention on Human Rights Sufficiently Equipped to cope with Gross and Systematic Violations?”, NQHR 1994, p. 164: drawing a parallel to the American Human Rights Commission and the UN Committee Against Torture (CAT).

[23] Art. 61 Rules of the Court.

[24] ECtHR – Press Unit, Factsheet – Pilot Judgments, http://www.echr.coe.int/Documents/FS_Pilot_judgments_ENG.pdf, p.1.

[25] More on this topic: Jahn. “Ruling (In)directly through Individual Measures? Effect and Legitimacy of the ECtHR’s New Remedial Power”, ZaöRV 2014, p. 36.

[26] E.g. ECtHR, No. 40167/06, Sargsyan v. Azerbaidschan, 16th June 2015, para. 238; ECtHR, No. 13216/05, Chiragov and Others v. Armenia, 16 June 2015, para. 199.

[27] Protocol No. 16 (not yet in force).

[28] ECtHR, Reflection Paper on the Proposal to Extend the Court’s Advisory Jurisdiction, available under  https://www.coe.int/t/dgi/brighton-conference/Documents/Court-Advisory-opinions_en.pdf, para. 5.

[29] Jahn. “Normative Guidance from Strasbourg through Advisory Opinions”, ZaöRV 2014, p. 836 f.

[30] ECtHR, The Court Priority’s Policy, available under: http://www.echr.coe.int/Documents/Priority_policy_ENG.pdf.

[31] Macdonald.Protecting human rights in emergency situations: Making Article 15 work”, Protection des droits de l’homme : la perspective européenne – Mélanges à la mémoire de Rolv. Ryssdal, 2000, p. 817; Ergec, Les droits de l’homme à l’épreuve des circonstances exceptionelles, 1987, p. 171 : „précieux gage de sa crédibilité“.

[32] Janis, Kay, & Bradley. European Human rights Law- Text and Materials, 2008, p. 66.

[33] ECtHR, No. 15318/89, Loizidou v Turkey (preliminary objections), 23 March 1995, para.75.

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