Redesigning the European Court of Human Rights: Embeddedness as a deep structural principle of the European human rights regime

European Journal of International Law

Volumn 19, Issue 1, 2008, Pages 125-159

  Helfer, Laurence R ^a  

^a VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

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EID: 42949095523     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chn004     Document Type: Article

References (255)

1. Convention for the Protection of Human Rights and Fundamental Freedoms, 4 Nov. 1950, 213 UNTS 222 (hereinafter European Convention).
2. Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Control Machinery Established Thereby, ETS No. 155.
3. For a useful review of these activities and a discussion of their significance see Caflisch, 'The Reform of the European Court of Human Rights: Protocol No. 14 and Beyond', 6 Human Rts L Rev (2006) 403, at 403-415
4. S. Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (2006), at 136-165.
5. See Caflisch, supra note 3, at 404 ('With its 45 judges and about 250 Registry lawyers, the Court is presently confronted with an accumulated case-load of 82,600 applications, out of which 45,550 were made in 2005, the yearly capacity of absorption of the Court now being at around 28,000 cases').
6. These statistics are current as of 1 May 2006: ibid., at 404 n. 3.
7. The backlog of cases 'is projected to rise to 250,000 by 2010'. The Right Hon. The Lord Woolf et al., Review of the Working Methods of the European Court of Human Rights at 8 (Dec. 2005), available at: www.echr.coe.int/eng/press/2005/Dec/LORDWOOLFSREVIEWONWORKINGMETHODS2.pdf
8. Dembour, '"Finishing Off" Cases: The Radical Solution to the Problem of the Expanding ECTHR Caseload' [2002] European Human Rts L Rev 604, at 621
9. see also Leach, 'Access to the European Court of Human Rights - From a Legal Entitlement to a Lottery?', 27 Human Rts LJ (2006) 11.
10. See, e.g., Wildhaber, 'A Constitutional Future for the European Court of Human Rights', 23 Human Rts LJ (2002) 161, at 162-163
11. Mahoney, 'New Challenges for the European Court of Human Rights Resulting from the Expanding Caseload and Membership', 21 Pennsylvania State Int'l L Rev (2002) 101, at 105.
12. Committee of Experts for the Improvement of Procedures for the Protection of Human Rights, Report of the Evaluation Group to Examine Possible Means of Guaranteeing the Effectiveness of the European Court of Human Rights, Doc. EG Court (2001), at para. 98 (27 Sept. 2001) (internal quotations omitted).
13. For a more comprehensive analysis of subsidiarity that extends beyond the European Convention see Carozza, 'Subsidiarity as a Structural Principle of International Human Rights Law', 97 AJIL (2003) 38, at 39 (explaining the 'original and most comprehensive sense' of subsidiarity and exploring its 'deep affinities... with many of the implicit premises of international human rights norms, including presuppositions about the dignity and freedom of human persons, the importance of their association with others, and the role of the state with respect to smaller social groups as well as individuals').
14. Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (2002), at 236.
15. European Convention, supra note 1, Art. 13 (obligating member states to provide an effective national remedy) and Art. 35 (exhaustion of domestic remedies).
16. See R. Blackburn and J. Polakiewicz, Fundamental Rights in Europe: The ECHR and its Member States, 1950-2000 (2001), at p. xiv.
17. Arai-Takahashi, supra note 9, at 235.
18. See, e.g., Greer, supra note 3, at 216
19. Petzold, 'The Convention and the Principle of Subsidiarity', in R. St. J. Macdonald, F. Matscher, and H. Petzold (eds), The European System for the Protection of Human Rights (1993), at 41, 60.
20. See Moravcsik, 'The Origins of International Human Rights Regimes: Democratic Delegation in Postwar Europe', 54 Int'l Org (2000) 217.
21. Greer, supra note 3, at 40
22. see A.H. Robertson and J.H. Merrills, Human Rights in the World (3rd edn., 1989), at 62.
23. See Caflisch, supra note 3, at 405 (estimating that 'more than half of the applications addressed to the Court concern Article 6 (fair trial), and at least half of these - i.e. one quarter of the total number of applications - concern the excessive length of proceedings')
24. Greer, supra note 3, at 74-76 (analysing ECtHR judgments finding breaches of the Convention from 1999 to 2005 and concluding that over 75% concerned violations of fair trial rights or length of proceedings rules)
25. see also Cichowski, 'Courts, Rights and Democratic Participation', 39 Comparative Political Stud (2006) 50, at 65 (noting the large number of fair trial cases before the ECtHR and explaining how the Court's judgments 'play a critical role in expanding domestic access to legal institutions for private parties').
26. See App. No. 31210/96, Kudla v. Poland (2000), at para. 148 (stating that the Court has 'draw[n] attention to the important danger that exists for the rule of law within national legal orders when excessive delays in the administration of justice occur in respect of which litigants have no domestic remedy') (quotations omitted)
27. see also Wolf, 'Trial Within a Reasonable Time: The Recent Reforms of the Italian Justice System in Response to the Conflict with Article 6(1) of the ECHR', 9 Eur Public L (2003) 189.
28. See Mahoney, 'Speculating on the Future of the Reformed European Court of Human Rights', 20 Human Rts LJ (1999) 1, at 4 (predicting that, with accession of former Soviet bloc countries to the Convention, the ECtHR would be confronted with 'serious human rights violations' such as 'minorities in conflict with [a] central government' and cases relating to 'terrorism, violence, and civil strife').
29. See Memorandum on Threats to Applicants to the European Court of Human Rights in Cases from Chechnya, in Parliamentary Assembly, Report of the Committee on Legal Affairs and Human Rights, Member States' Duty to Co-operate with the European Court of Human Rights, Doc 11183, App. I (9 Feb. 2007), available at: http://assembly.coe.int/main.asp?Link=/ documents/workingdocs/doc07/edoc11183.htm (documenting the Russian authorities' 'lack of willingness to effectively investigate' the murder, disappearance, beating, and harassment of individuals who had filed applications with the ECtHR alleging extrajudicial killings and disappearances of civilians in Chechnya).
30. See generally Slaughter and Burke-White, 'The Future of International Law is Domestic (or, The European Way of Law)', 47 Harvard J Int'l L (2006) 327, at 328 ('[T]he primary terrain of international law must shift... from independent regulation above the national state to direct engagement with domestic institutions. The three principal forms of such engagement are strengthening domestic institutions, backstopping them, and compelling them to act').
31. See Bradley Kar, 'The Deep Structure of Law and Morality', 84 Texas L Rev (2006) 877, at 882 (explaining that many scholars use the term 'deep structure' to describe the foundational principles embedded in laws and legal institutions)
32. Fletcher, 'What Law is Like', 50 Southern Methodist U L Rev (1997) 1599, at 1604 and n. 22 (discussing the increasing prevalence of the term 'deep structure' to describe these same principles).
33. Keohane, 'Compliance with International Commitments: Politics within a Framework of Law', 86 Am Soc'y Int'l L Proceedings (1992) 176, at 179.
34. Ibid.
35. Ibid., at 180.
36. Koh, 'How is International Human Rights Law Enforced?', 74 Indiana LJ (1999) 1397, at 1403.
37. Koh, 'On American Exceptionalism', 55 Stanford L Rev (2003) 1479, at 1502.
38. Koh, 'Transnational Legal Process', 75 Nebraska L Rev (1996) 181, at 205. 204.
39. Koh, supra note 26, at 1502.
40. Helfer and Slaughter, 'Toward a Theory of Effective Supranational Adjudication', 107 Yale LJ (1997) 273, at 277.
41. Ibid., at 387.
42. Ibid.
43. Keohane et al., 'Legalized Dispute Resolution: Interstate and Transnational', 54 Int'l Org (2000) 457. The two other variables are the tribunal's access rules and its independence from the states subject to its jurisdiction.
44. Ibid., at 458.
45. Ibid., at 467.
46. Ibid., at 468.
47. Ibid.
48. See Caflisch, supra note 3, at 405 (stating that the ECtHR rejects over 90% of complaints because the applicants cannot satisfy the Convention's admissibility rules).
49. See European Convention, supra note 1, Art. 6(1) (requiring a hearing to determine criminal charges and civil rights and obligations 'within a reasonable time')
50. S. Stavros, The Guarantees for Accused Persons Under Article 6 of the European Convention on Human Rights (1993), at 77-115 (analysing the right to proceedings of a reasonable length). I am grateful to David Weissbrodt for drawing my attention to this arresting fact.
51. Whether embeddedness enhances member states' compliance with ECtHR judgments is a more complex subject that I address in the next section.
52. Cf. Kumm and Ferreres Comella, 'The Primacy Clause of the Constitutional Treaty and the Future of Constitutional Conflict in the European Union', 3 Int'l J Const L (2005) 473, at 486 ('To prevent international embarrassment, both the national courts and the political branches feel that it is better to protect rights "at home," as it were').
53. Mahoney, 'Universality versus Subsidiarity in the Strasbourg Case Law on Free Speech: Explaining Some Recent Judgments' [1997] European Human Rts L Rev 364, at 369.
54. Helfer, 'Adjudicating Copyright Claims under the TRIPs Agreement: The Case for a European Human Rights Analogy', 39 Harvard Int'l LJ (1998) 357, at 396
55. see also Sunday Times v. United Kingdom, ECtHR, Series A No. 30 (1979), at para. 61 ('[T]he main purpose of the Convention is to lay down certain international standards to be observed by the Contracting States in their relations with persons under their jurisdiction. This does not mean absolute uniformity is required and, indeed, since the Contracting States remain free to choose the measures which they consider appropriate, the Court cannot be oblivious of the substantive or procedural features of their respective domestic laws') (internal quotations omitted).
56. Helfer and Slaughter, supra note 29, at 367-373, 389-391.
57. Carozza, supra note 8, at 75.
58. See, e.g., Saïdi v. France, EMIR, Series A No. 261-C, at 57 (1993)
59. Wildhaber, supra note 6, at 162.
60. Ress, 'The Effect of Decisions and Judgments of the European Court of Human Rights in the Domestic Legal Order', 40 Texas Int'l LJ (2005) 359, at 374. Until recently, the Netherlands was the only member state in which ECtHR judgments could be executed in the same manner as domestic judicial rulings:
61. ibid. (noting this fact and stating that 'the situation in the Netherlands is an absolute singularity'). In 2006, the Ukraine adopted a statute and a Presidential decree to follow the same approach.
62. See Sviriba, 'Enforcing judgments of the ECHR', Magister & Partners, International Law Office (12 Sept. 2006), available at: www.magisters.com/publication.php?publicationid=33 (stating that under the new laws 'an ECHR judgment against [the Ukraine] now constitutes an executive document in itself and can be filed directly for enforcement').
63. Some national constitutional courts have refused to surrender to the ECJ their authority over the interface between domestic constitutions and EU law, instead negotiating a cooperative relationship with the judges in Luxembourg: See Hoffmeister, 'Germany: Status of European Convention on Human Rights in Domestic Law', 4 Int'I J Const L (2006) 722, at 730.
64. In practice, however, even the most assertive of these courts - the German Constitutional Court - has never held an ECJ judgment to be invalid: ibid.
65. See Goodman and Jinks, 'How to Influence States: Socialization and International Human Rights', 54 Duke LJ (2004) 621, at 635-638.
66. See Committee of Ministers, List of Individual Measures Adopted, H/Exec (2006) 2 (Apr. 2006) (comprehensively listing the measures that member states have adopted following adverse ECtHR judgments to remedy the effects of Convention violations for individual applicants).
67. See infra Part 3C.
68. See European Convention, supra note 1, Art. 53(1) ('The High Contracting Parties undertake to abide by the final judgment of the Court in a case to which they are parties').
69. See Barkuysen and van Emmerik, 'A Comparative View on the Execution of Judgments of the European Court of Human Rights', in T. Christou and J.P. Raymond (eds), European Court of Human Rights: Remedies and Execution of Judgments (2005), at 1, 15, 19.
70. See ibid., at 12 (describing revisions several legislative initiatives in the Netherlands relating to the right to property, the content of which 'was motivated by the requirements of Article 1 of Protocol 1... as interpreted in the case law of the [ECtHR]').
71. See Ress, supra note 46, at 374 (stating that 'judgments of the [ECtHR] do not have an erga omnes effect, but they have an orientation effect')
72. see also Greer, supra note 3, at 279 (stating that the 'orthodox view' is that 'any state is obliged to observe only those judgments made directly against it').
73. See A. Drzemczewski, The European Human Rights Convention in Domestic Law (1983), at 260-303.
74. Appendix to Recommendation Rec(2004) 6 of the Committee of Ministers to Member States on the improvement of domestic remedies (12 May 2004), at 3-4. This new unity harbours a diversity of a different sort. In two or three countries, the treaty has supra-constitutional status or is on a par with the national constitution. The remaining states are divided between those in which the Convention is inferior to the constitution but superior to domestic statutes and those in which it is equivalent to ordinary legislation.
75. See Hoffmeister, supra note 47, at 726-728
76. Ress, supra note 46, at 375-376.
77. Ress, supra note 46, at 376.
78. Ibid.
79. This view is confirmed by a 2002 conference of European constitutional courts at which 21 such courts 'declare[d] themselves not bound by the rulings of the [ECHR]', but an even larger number noted 'the preponderant influence of [Strasbourg] case law... when it comes to determining the substance of the basic rights guaranteed by internal law and the extent of the restrictions that can be placed on them': Conference of European Constitutional Courts, XIIth Congress, General Report: The relations between the Constitutional Courts and the other national courts, including the interference in this area of the action of the European courts (14-16 May 2002), at 48.
80. Ibid., at 50.
81. The general report noted two reasons for this reluctance: First, that lower courts 'prefer to base their decisions on regulations of internal law rather than on international provisions'; and, secondly, that analysing ECtHR case law seemed 'pointless' where the same rights had been recognized by both the Convention and the constitution: ibid.
82. Loizidou v. Turkey, 310 ECtHR, Series A No 310 (1995), at 27.
83. Sadik v. Greece, 24 EHRR (1996) 323, at 339.
84. For a discussion of the Court's interpretive methodologies see Helfer, supra note 42, at 401-407
85. Mowbray, 'The Creativity of the European Court of Human Rights', 5 Human Rts L Rev 57, (2005) 60.
86. Ress, supra note 46, at 364.
87. See, e.g., Alkema, 'The European Convention as a Constitution and its Court as a Constitutional Court', in P. Mahoney et al. (eds), Protecting Human Rights: The European Perspective (2000), at 41
88. Cameron, 'Protocol 11 to the European Convention on Human Rights: The European Court of Human Rights as a Constitutional Court?', 15 YB Eur L (1995) 219, at 236-237, 243-244
89. Cours Européenne des Droits de L'homme et Cours Constitutionnelles (2005), available at: www.oboulo.com/ cours-europeenne-droits-homme-cours-constitutionnelles-13715.html
90. Greer, 'Constitutionalizing Adjudication under the European Convention on Human Rights', 23 Oxford Journal of Legal Studies (2003) 405
91. Wildhaber, supra note 6, at 162-163.
92. Cameron, supra note 65, at 223-224
93. Flauss, 'La Cour européenne des droits de l'homme est-elle une Cour constitutionnelle?', 36 Revue Française de Droit Constitutionnel (1998) 711, at 711-728.
94. Greer, supra note 3, at 166
95. see also Wildhaber, supra note 6, at 162-163 (describing the Court's 'constitutional' mission as 'determining issues on public policy grounds in the general interest' and extending its 'jurisprudence throughout the community of Convention States').
96. Harmsen, 'The European Convention on Human Rights After Enlargement', 5 Int'l J Human Rts (2001) 18, at 32-33
97. see also Cameron, supra note 65, at 252 (emphasizing the Court's future 'pedagogical' role in the 'creation of a legal culture' when reviewing cases from former Soviet Bloc countries).
98. Greer, supra note 3, at 166 (articulating but not endorsing this approach).
99. I thank Elizabeth Sepper, NYU School of Law, JD 2007 and LL.M 2008, for drawing my attention to this example.
100. See La Pergola and Del Duca, 'Community Law, International Law and the Italian Constitution', 79 AJIL (1985) 598, at 604.
101. See Baldassarre, 'Structure and Organization of the Constitutional Court of Italy', 40 St Louis Univ LJ (1996) 649, at 650.
102. See Volcansek, 'Judicial Activism in Italy', in K.M. Holland (ed.), Judicial Activism in Comparative Perspective (1991), at 117, 120
103. Nardini, 'Passive Activism and the Limits of Judicial Self Restraint: Lessons for America from the Italian Constitutional Court', 30 Seton Hall L Rev (1999) 1, at 42 n. 18.
104. See Volcansek, 'Judicial Review and Public Policy in Italy: American Roots and the Italian Hybrid', in D.W. Jackson and C.N. Tate (eds), Comparative Judicial Review and Public Policy (1992), at 89, 98.
105. Baldassarre, supra note 72, at 652-654.
106. Ibid.
107. Nardini, supra note 73, at 18.
108. See Ferejohn and Pasquino, 'Constitutional Adjudication: Lessons from Europe', 82 Texas L Rev (2004) 1671, at 1689.
109. Ibid.
110. Cornella, 'The European Model of Constitutional Review of Legislation: Toward Decentralization?', 2 Int'l J Const L (2004) 461, at 472-473.
111. Ferejohn and Pasquino, supra note 77, at 1689.
112. See Volcansek, supra note 74, at 98 (noting that the Parliament has created an office dedicated to evaluating the Constitutional Court's decisions and formulating an appropriate response).
113. Pizzorusso, 'Italian and American Models of the Judiciary and of Judicial Review of Legislation: A Comparison of Recent Tendencies', 38 Am J Comp L (1990) 374, at 385-386
114. Pizzorusso, 'Constitutional Review and Legislation in Italy', in C. Landfried (ed.), Constitutional Review & Legislation: An International Comparison (1988), at 109, 126.
115. Caflish, supra note 3, at 403.
116. European Ministerial Conference on Human Rights, Resolution I, Institutional and Functional Arrangements for the Protection of Human Rights at National and European Level (Rome, 3-4 Nov. 2000).
117. See Res. 1226, Parliamentary Assembly of the Council of Europe, Execution of Judgments of the European Court of Human Rights (2000), at para. 7.
118. Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, ETS No. 194, opened for signature 13 May 2004.
119. Russia is the only hold-out. In Dec. 2006 the State Duma refused to ratify the treaty. I discuss the significance of Russia's (perhaps temporary) refusal to ratify Protocol No. 14 in Part 4C.
120. For detailed analyses of Protocol No. 14 see Caflisch, supra note 3, at 407-412
121. Beernaert, 'Protocol 14 and New Strasbourg Procedures: Toward Greater Efficiency and at What Price?'[2004] Eur Human Rts L Rev 544, at 547-555
122. Mowbray, 'Protocol 14 to the European Convention on Human Rights and Recent Strasbourg Cases', 4 Human Rts L Rev (2004) 331, at 331-335.
123. Council of Europe, Explanatory Report to Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms amending the control system of the Convention (13 May 2004), at para. 14 ('Only a comprehensive set of interdependent measures tackling the problem from different angles will make it possible to overcome the Court's present overload').
124. Belgian Linguistics Case, ECtHR, Series A No. 6 (1968), at 35.
125. Observer and Guardian v. United Kingdom, ECtHR, Series A No. 216 (1991), at 30.
126. App. Nos 29458/04 and 29465/04, Sokurenko and Strygun v. Ukraine (2006), at 13 (joint dissenting opinion of Judges Lorenzen and Maruste).
127. Ibid.
128. (citing Vidal v. Belgium, ECtHR, Series A No. 235-B, at para. 32
129. Edwards v. United Kingdom, ECtHR, Series A No. 247-B (1992), at para. 34.
130. App No 7615/02, Imakayeva v. Russia (2006), at para. 111.
131. Ibid., at paras 111-115.
132. Ibid., at para. 117 (summarizing case law involving human rights violations in Turkey).
133. E.g. App. No. 25657/94, Avşar v. Turkey, ECHR 2001-VII, at para. 283.
134. App. No. 65899/01, Taniş v. Turkey (2005), at para. 160(c).
135. App. No. 23819/94, Bilgin v. Turkey (2000), at para. 66.
136. Avşar v. Turkey, supra note 96, at para. 183.
137. E.g., App. No. 21689/93, Ahmet Özkan v. Turkey (2004), at para. 84.
138. See, e.g., Avşar v. Turkey, supra note 96, at para. 283 ( Where domestic proceedings have taken place, it is not the Court's task to substitute its own assessment of the facts for that of the domestic courts and as a general rule it is for those courts to assess the evidence before them') (emphasis added)
139. App. No. 51480/99, Erikan Bulut v. Turkey (2006), at paras 39-43 (holding that police officials had conducted an adequate investigation into the applicant's defenestration)
140. App. No. 41964/98, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey (2006), at para. 83 (rejecting the applicants'attempt to prove a Convention violation by relying on a government report of an investigation of the causes of unrest in south-eastern Turkey, and characterizing the report as 'a serious attempt to provide information on and analyse problems associated with the fight against terrorism from a general perspective and to recommend... investigative measures').
141. Harmsen, supra note 68, at 29.
142. See, e.g., Imakayeva v. Russia, supra note 93, at paras 117-119.
143. Harmsen, supra note 68, at 29.
144. See Kamminga, 'Is the European Convention on Human Rights Sufficiently Equipped to Cope with Gross and Systematic Violations?', 12 Neth Q Human Rts (1994) 153.
145. See App. No. 22494/93, Hasan ̇ Ihan v. Turkey (2004), at para. 123 (stating that 'defects' in the 'investigatory system' in 'south-east Turkey in the first half of the 1990s' 'undermined the effectiveness of criminal-law protection' and 'fostered a lack of accountability of members of the security forces for their actions which was not compatible with the rule of law in a democratic society').
146. European Convention, supra note 1, Art. 13.
147. Malone v. United Kingdom, ECtHR, Series A No. 82 (1984), at 37 (partly dissenting opinion of Judges Matcher and Pinheiro Farinha) (stating that Art. 13 'constitutes one of the most obscure clauses in the Convention and that its application raises extremely difficult and complicated problems of interpretation').
148. See Silver v. United Kingdom, ECtHR, Series A No. 61 (1983), at para. 113
149. Swedish Engine Drivers' Union v. Sweden, ECtHR, Series A No. 20 (1984), at para. 50.
150. See A.R. Mowbray, The Developtnent of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (2004), at 205-207
151. D. Shelton, Remedies in International Human Rights Law (2nd edn., 2006), at 123.
152. See Thune, 'The Right to an Effective Remedy in Domestic Law: Article 13 of the European Convention on Human Rights', in D. Gormen (ed.), Broadening the Frontiers of Human Rights: Essays in Honour of Asbjorne Eide (1993), at 79, 82, 83 (stating that 'Article 13 is often invoked by complainants, but... the complaint is rarely successful', and noting that, as of 1992, the ECHR had found violations of Art. 13 in only 3 of 46 cases in which applicants alleged a violation of the provision).
153. See, e.g., App. No. 59450/00, Ramirez Sanchez v. France (Grand Chamber, 2006), at paras 157-160.
154. Mowbray, supra note 110, at 207.
155. App. No. 51564/99, Čonka v. Belgium (2002), at para. 83.
156. E.g. App. No. 38361/97, Anguelova v. Bulgaria (2002), at para. 161.
157. App. No. 48254/99, Cobzaru v. Romania (2007), at para. 82 (summarizing earlier case law).
158. Čonka v. Belgium, supra note 114, at para. 79
159. App. No. 40035/98, Jabari v. Turkey (2000), at para. 50.
160. See, e.g., Čonka v. Belgium, supra note 114, at para. 83 (reviewing the procedures and practices by which the Belgian Conseil d'Etat may stay execution of a collective expulsion order and concluding that the remedy was 'too uncertain to enable the requirements of Article 13 to be satisfied')
161. App. No. 75529/01, Sürmeli v. Germany (Grand Chamber, 2006), at paras 80-115 (examining in detail four distinct remedies that the government alleged were available to challenge excessively lengthy proceedings - a constitutional complaint, an appeal to a higher authority, a special complaint alleging inaction, and an action for damages - and concluding that all four were ineffective and thus insufficient to satisfy Art. 13).
162. Ibid., at para. 84
163. see also App. No. 18015/03, Schutte v. Austria (2007), at para. 36 (rejecting the government's argument's that states parties 'should not be required under Article 13 to provide a remedy against delays caused by one of its highest courts')
164. Sürmeli v. Germany, supra note 118, at para. 104 (stating that the ECtHR had recently 'undertaken a closer examination of the effectiveness, within the meaning of Article 13 of the Convention, of remedies in a number of Contracting States in respect of the length of proceedings').
165. App. No. 30210/96, Kudla v. Poland (2000), at para. 158. In more recent judgments, the ECtHR has stated that 'the best solution' is 'a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy' in the first instance: See, e.g., Sürmeli v. Germany, supra note 118, at para. 100.
166. Kudla v. Poland, supra note 120, at para. 155.
167. Barkuysen and van Emmerik, supra note 52, at 3.
168. European Convention, supra note 1, Art. 41.
169. See Barkuysen and van Emmerik, supra note 52, at 20 (describing supervision and enforcement of ECtHR judgments by the Committee of Ministers).
170. Von Staden, 'Assessing the Impact of the judgments of the European Court of Human Rights on Domestic Human Rights Policies', paper prepared for delivery at the Annual Meeting of the American Political Science Association (1 Sept. 2007), at 7 (citing D. Leeb, Die innerstaatliche Umsetzung der Feststellungsurteile des Europäischen Gerichtshofesf für Menschenrechte im entschiedenen Fall (2001), at 18).
171. Leach, 'Beyond the Bug River - A New Dawn for Redress Before the European Court of Human Rights' [2005] Eur Human Rts L Rev 147, at 149 ('in one notable area the Court has begun to throw off former constraints and to embark on a more expansive, radical agenda: In its provision of redress to successful applicants').
172. See European Commission for Democracy Through Law (Venice Commission), Opinion on the Implementation of the Judgments of the European Court of Human Rights, Op. No. 209/2002 (Dec. 2002)
173. see also Bates, 'Supervision of the Execution of judgments delivered by the European Court of Human Rights: The Challenges Facing the Committee of Ministers', in Christou and Raymond, supra note 52, at 49, 70 and n. 94 (citing reports and resolutions criticizing the ECtHR for lack of clarity in specifying remedial measures).
174. Bates, supra note 127, at 70 and n. 93
175. see also von Staden, supra note 125, at 9 (stating that 'even though [a] case decided at Strasbourg implicates a general governmental policy, such as a particular legal provision, the state may seek to portray the violation found by the Court as unique and thus limit its response to the individual case, thereby avoiding a change in its general policy').
176. Cameron, supra note 65, at 228.
177. Bates, supra note 127, at 70 and n. 94.
178. The remedies that the Court indicates are legally binding when they are phrased in mandatory language and appear in the operative part of the judgment. In other cases, the Court phrases remedies as recommendations rather than obligatory commands: See Colandrea, 'On the Power of the European Court of Human Rights to Order Specific Non-monetary Measures: Some Remarks in Light of the Assandize, Broniowski and Sejdovic Cases', 7 Human Rts L Rev (2007) 396, at 397-399.
179. See ibid., at 398-403 (reviewing case law).
180. Leach, supra note 126, at 149. But see Colandrea, supra note 131, at 411 (concluding that '[o]nly when the violation is such that it excludes any choice as to the means of reparation open to the State will the Court formulate a specific measure').
181. Res. (2004)3 of the Committee of Ministers on judgments revealing an underlying systemic problem (12 May 2004).
182. App. No. 31443/96 (Grand Chamber, 2004).
183. Ibid., at para. 189.
184. Ibid., at para. 193.
185. Broniowski v. Poland, supra note 135, at paras 39-42 (Grand Chamber, 2005) (friendly settlement).
186. See Aceves, 'Actio Popularis? The Class Action in International Law' [2003] U Chicago Legal Forum 353, at 391 ('[c]lass action litigation is not recognized as a procedural mechanism in international law').
187. Caflisch, supra note 3, at 413
188. see also Leach, supra note 126, at 162-163.
189. See Garlicki, 'Broniowski and After: On the Dual Nature of "Pilot judgments"', in L. Caflisch et al. (eds), Liber Amicorum Luzius Wildhaber (2007), at 177, 186-191.
190. See App. No. 36813/97, Scordino v. Italy (No. 1) (Grand Chamber, 2006) (finding that new legislation, enacted by the government to remedy widespread and systemic delays in judicial proceedings that the ECtHR had reviewed in earlier judgments, itself violated the Convention).
191. That alleviating docket congestion is not the sole or even the primary rationale for these doctrinal developments is illustrated by cases in which the ECtHR acts as a first instance tribunal: See supra Part 3A. The Court's assumption of this role can only increase its case load in the short and medium term.
192. Soering v. United Kingdom, ECtHR, Series A No. 161 (1989), at 34.
193. Slaughter and Burke-White, supra note 20, at 333.
194. See supra Part 2C.
195. See Recommendation Rec(2000)2 of the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the ECtHR (19 Jan. 2000), at 2.
196. Steering Committee for Human Rights, Committee of Experts for the Improvement of Procedures for the Protection of Human Rights (DH-PR), Draft Follow-up Sheets on the Implementation of the Five Recommendations, DH-PR(2006)002 Addendum 1. (4 Apr. 2006), available at: www.coe.int/t/f/droits_de_l'homme/DH-PR(2006)002EAddendumI.asp, at 5.
197. See Ensuring the continued effectiveness of the European Convention on Human Rights - The Implementation of the reform measures adopted by the Committee of Ministers at its 114th Session, 116th Session of the Committee of Ministers, CM(2006)39 final (12 May 2006), at 6.
198. Report of the Group of Wise Persons to the Committee of Ministers, CM(2006)203 (15 Nov. 2006), at 21.
199. The Group of Wise Persons considered, but ultimately rejected, creating a preliminary ruling procedure for domestic judges to refer legal questions to the ECtHR - an institutional linkage that exists between the ECJ and European national courts. According to the Final Report, such a mechanism 'represents an alternative model to the judicial control established by the Convention, which requires domestic remedies to be exhausted. The combination of the two systems would create significant legal and practical problems and would considerably increase the Court's workload': ibid.
200. Ibid., at 21. Although the report refers to the ECtHR's constitutional justice function, its proposal for advisory opinions provides a mechanism for the Court more deeply to embed its interpretations of the Convention in national legal systems.
201. Ibid., at 22.
202. The experts further recommended that the ECtHR 'have discretion to refuse to answer a request for an opinion' without the need to give reasons for its refusal: ibid.
203. Group of Wise Persons, supra note 150, at 25-26.
204. For a similar proposal see Mahoney, 'Thinking a Small Unthinkable: Repatriating Reparation from the European Court of Human Rights to the National Legal Order', in Caflisch et al. (eds), supra note 141, at 263.
205. Group of Wise Persons, supra note 150, at 26.
206. Recommendation Rec(2004)5 of the Committee of Ministers to member states on the verification of the compatibility of draft laws, existing laws, and administrative practice with the standards laid down in the European Convention on Human Rights (12 May 2004), at 2.
207. Ibid.; Committee of Ministers, supra note 149, at 7.
208. See Declaration of the Committee of Ministers on sustained action to ensure the effectiveness of the implementation of the European Convention on Human Rights at national and European levels (19 May 2006), at para. X(g).
209. A recent Council of Europe survey found that national courts play a pre-eminent role in reviewing existing legislation and administrative practices to determine their compatibility with the Convention: See Committee of Experts, supra note 148, at 47-51.
210. See J.-P. Costa, 'Comments on the Wise Persons' Report from the Perspective of the European Court of Human Rights', in Colloquy on the Future Developments of the European Court of Human Rights in the light of the Wise Persons' Report (San Marino, 22-23 Mar. 2007), at 39, 42 (hereinafter San Marino Colloquy) (noting that Group of Wise Persons'proposal that domestic courts be authorized to request advisory opinions from the ECtHR and to determine compensation to prevailing complainants were ideas 'in respect of which the Court is unfavourable or at least has reservations').
211. See Thomassen, 'Relations between the Court and States Parties to the Convention', in San Marino Colloquy, supra note 159, at 58, 64 (stating that proposal to refer damages remedies to domestic courts could be 'incompatible with national systems' and suggesting an alternative proposal).
212. Cf. Mahoney, 'Parting Thoughts of an Outgoing Registrar of the European Court of Human Rights', 26 Human Rts LJ (2005) 345, at 346 (asserting that 'further reform, quite radical - in the sense of structural changes that redesign the architecture of adjudication by the Court - is called for in addition to the oft-cited "managerial" changes').
213. Protocol No. 14, supra note 85, Art. 12(b).
214. See Protocol No. 14 Explanatory Report, supra note 88, at paras 77-82.
215. See ibid., at paras 80-82.
216. The proposal to add this discretionary admissibility criterion to the Convention generated considerable controversy among NGOs, members of the Court, and the Council of Europe's political and expert bodies: See Beernaert, supra note 87, at 552 and nn. 43-46.
217. Kumm and Comella, supra note 40, at 486.
218. See supra Part 3C.
219. Mowbray, supra note 63, at 72 ('Another significant method of interpretation developed by the Court has been to interpret the Convention in a manner that seeks to ensure that... rights and freedoms are applied in ways that are of "practical and effective" use to complainants').
220. See Shelton, supra note 110, at 281 ('Protocol No. 11 now makes the individual an initiating party to the proceedings and a direct focus or object of the case. The Court should therefore rely upon the inherent powers of international tribunals to afford adequate remedies to the injured party before it').
221. See Greer, supra note 3, at 160
222. see also Leach, 'The Effectiveness of the Committee of Ministers in Supervising Enforcement of Judgments of the European Court of Human Rights' [2006] Public L 443, 445 ('In recent years the Ministers' Deputies have sought to improve the efficiency and publicity of the execution control process and to develop their responses, in particular, to situations of delay and negligence').
223. See Garlicki, supra note 141, at 186-191.
224. See Registrar of the European Court of Human Rights, '"Pinto" cases adjourned pending decision on test case, Press Release 014 (18 Jan. 2005) (stating that the ECtHR had adjourned' over 800 Italian length-of-proceedings cases, pending its decision in a test case concerning the application of Italy's "Pinto Law"').
225. Cf. von Staden, supra note 125, at 9 and n. 46 (noting that'a state may prefer to simply pay just satisfaction without taking substantive steps to remedy the situation and fully remove the consequences of the violation' and suggesting that many governments enter into friendly settlements for this reason).
226. To be sure, the ECtHR may not approve a friendly settlement unless it manifests a 'respect for human rights as defined in the Convention and the Protocols thereto' European Convention, supra note 1, Art. 37. It remains unclear, however, how stringently the Court will apply that requirement in pilot judgment cases.
227. See supra Part 3B.
228. Recommendation Rec(2004)6 of the Committee of Ministers to Member States on the improvement of domestic remedies (12 May 2004), at 2.
229. A different Committee of Ministers recommendation adopted on the same date provided the impetus for the ECtHR to create the pilot judgment procedure: See supra note 134 and the text accompanying it.
230. C. Ovey and R. White, Jacobs and White on the European Convention on Human Rights (4th edn., 2006), at 471 (stating that the 'potential for the development through interpretation of the rights contained in Article 13 remains high').
231. Mahoney, supra note 153, at 282
232. see also Group of Wise Persons, supra note 150, at 24 (proposing the adoption of a protocol that obligates member states 'to introduce domestic legal mechanisms... to redress the damage resulting from any violation of the Convention, and especially those resulting from structural or general shortcomings in a state's law or practice').
233. Greer, supra note 3, at 281.
234. Programmes for training and assistance already exist, but they have been criticized as 'under-funded and extremely limited in scope': ibid. at 108 (internal quotations omitted).
235. Kahler, 'Conclusion: The Causes and Consequences of Legalization', 54 Int'l Org (2000) 661, at 675.
236. Greer, supra note 3, at 131.
237. See ibid., at 289-301 (discussing the activities and functions of NHRIs).
238. This para, is inspired by Steven Greer's thoughtful reform proposals: see ibid., at 310-311.
239. Sundstrom, 'Carrots and Sticks for Democracy in the OAS: Comparison with the East European Experience', 10 Canadian Foreign Pol (2003) 45, at 46.
240. See Jordan, 'Does Membership Have Its Privileges?: Entrance into the Council of Europe and Compliance with Human Rights Norms', 25 Human Rts Q (2003) 660, at 681 (stating that 'in November 2002, the Council granted Russia 18 million euros toward implementing a number of new legal reforms, and in recognition of its fulfilling Council obligations' relating to human rights).
241. Such measures must be used sparingly to avoid the perception that the Council rewards countries that refuse to comply with ECtHR judgments. Seen from this perspective, cases involving lack of capacity present more attractive cases for 'carrots' than those of willful non-compliance.
242. Compare Sundstrom, supra note 184, at 50 (asserting that Russia was 'clearly embarrassed about this punishment... and was eager to satisfy the [Council] demands quickly to restore its status in the [Council]') with Baker, 'Europe Council Restores Russia's Rights', New York Times, 26 Jan. 2001, at A14 (reporting statements by Council officials that the suspension of Russia's voting privileges weakened the Council's ability to monitor human rights standards in Chechnya).
243. Registry of the European Court of Human Rights, Survey of Activities 2006 (2007), at 51.
244. 'Duma Gives It to the European Court', Kommersant (21 Dec. 2006), available at: www.kommersant.com/p732043/r_500/ State_Duma_European_Court/.
245. See App. No. 36378/02, Shamayev and Others v. Georgia and Russia (2005)
246. App. No. 48787/99, Ilaşcu and Others v. Moldova and Russia (Grand Chamber, 2004)
247. Kaye, 'International Decisions: Isayeva, Yusupova and Bazayeva v. Russia and Khashiyev and Akayeva v. Russia', 99 AJIL (2005) 873.
248. President Vladimir Putin has explained the Duma's rejection of Protocol No. 14 as a reaction to 'a politisation of the Court's judgments'; O. Spijkers, How Russia Hijacks the European Court of Human Rights, 1948: An International Blog at the University of Leiden, available at: http://weblog.leidenuniv.nl/fdr/1948/2007/03/ how_russia_hijacks_the_european_court_of_human_rights_1.php.
249. See ibid.
250. see also Grubb and Safonov, 'Why is Russia Dragging its Feet on Kyoto?', Financial Times, 14 July 2003.
251. Mowbray, 'Faltering Steps on the Path to Reform of the Strasbourg Enforcement System', 7 Human Rts L Rev (2007) 609, at 610.
252. See supra Part 4A and 4B.
253. See supra text accompanying notes 179-181 (reviewing these proposals).
254. See supra note 16.
255. See, e.g., Scordino v. Italy (No. 1), supra note 142 (pilot judgment representing over 800 cases challenging the excessive length of proceedings in lower-level Italian courts).