Thursday, August 2, 2007

Interview: President of European Court of Human Rights Notes Necessity Searching Additional Ways of Simplifying Court Procedures

Interview: President of European Court of Human Rights Notes Necessity Searching Additional Ways of Simplifying Court Procedures

Trend’s interview with President of the European Court of Human Rights of the Council of Europe, Jean-Paul Costa.

Question: The European Union has recently established an Agency for European Union on major rights. How could the activities of the new establishment affect the work of the European Court of Human Rights?

Answer: Well first of all I should stress that I have never seen efforts undertaken by the European Union in the field of human rights as being in some way in competition with the Council of Europe and its institutions. If we are serious about strengthening human rights protection throughout Europe then we must welcome initiatives that help to achieve this. The efforts of the European Union and the Council of Europe in this sphere are and must be complementary. In this context I am particularly encouraged by the decision at the recent EU summit in Brussels that the new reform treaty will include the obligation for the Union to accede to the European Convention on Human Rights. As to the Fundamental Rights Agency itself, I do not see it having any direct impact on the Court’s work, since its role is entirely different. It is not a judicial organ with competence to examine and adjudicate individual complaints against member States. It is more concerned with data collection, research, analysis and awareness-raising and this may help the Court and the Council of Europe (who will have a representative on the Agency’s management board) in the wider perspective of enhancing human rights protection generally.

Question: What are your views on the future of the Court and its mission in the general European law, with the consideration of developments ongoing worldwide, including Europe? Will the Court remain loyal to its principles, developed over more than 50 years?

Answer: My view is that the system set up by the European Convention on Human Rights has proved its worth and that no one has yet come up with a better system for international human rights protection. Indeed I would go further and say that the system remains an outstanding model for control mechanisms designed to supervise the implementation of international law. In many ways its mission has become even more important – as the world get smaller the need for effective international justice grows. But also if the challenges do change and the environment within which the system has to operate obviously evolves, the basic premise of the system remains as valid as it was in 1950. That is that the best way to secure a stable and peaceful Europe is the maintenance of democracy and the rule of law through a judicial mechanism of external scrutiny based on the principle of collective enforcement. Will the Court remain loyal to its principles? Well in one sense of course it will remain an independent judicial body, functioning impartially on the basis of the legal framework which defines its competence. Yet the Convention has never been wholly static; it is what we call a living instrument and this dynamic character is necessary to adapt its guarantees to changing society and technology. For example what was understood by private and family life in 1950 bears little resemblance to what is encompassed by this notion in 2007. Thus the Court has interpreted the Convention’s provisions quite extensively over the years. However, it does so with caution and it is in my view right that it should do so, within a subsidiary system, having close regard to what is or is not a matter of European consensus in terms of the legal recognition of moral, social and technological development.

Question: At the moment over 90,000 appeals are under the consideration of the European Court of Human Rights. Yet Protocol 14 has not been ratified. Ideas by the Sage Group are not approved fully, as well. What are your views on the future of the European Court of Human Rights?

Answer: I have repeatedly stressed the need for a rapid entry into force of Protocol No. 14 and I continue to urge the Russian Federation, the only Council of Europe State still to ratify the Protocol, to take the necessary steps as soon as possible. At the same time I think it is important that the Council of Europe takes forward the work of the Wise Persons without delay. We must look for additional ways for the Court to streamline its procedures. We have to make sure that the Court is able to devote enough time to producing well-reasoned judgments in respect of the most important cases, particularly those which have the most impact on national legal systems. But in the end it is only through more effective implementation at national level that we will be able to reduce the Court’s caseload to a more manageable level. When, as already happens in some Contracting States, national courts are ready to apply the Convention and the Convention case-law themselves, then the Strasbourg Court could become what it is designed to be, a Court of last resort, not instance.

Could you name the post-Soviet country which mostly appeals the Court and what are the major problems in the court system in counties in transition period?

It is no secret that State with the highest volume of incoming applications is the Russian Federation, which accounts for approximately 22% of all the applications pending before the Court. However, in terms of the number of applications per head of population several States have higher rates: for example Slovenia, Czech Republic, Latvia, Romania, Poland, Croatia …. I should also make clear that the number of applications brought against a State is not necessarily an indication of how well human rights are protected there. For one thing many applications will be declared inadmissible; for another the number of applications will often depend on how well known the Convention is generally within the State concerned and specifically within the legal community.

The sort of problem varies from State to State and there are some rather special situations which give rise to particular types of issue. Generally it takes time to adapt a legal system to the proper operation of the rule of law and it also requires adequate financing. Some problems are common to certain States. For instance the non-execution of final judicial decisions is an issue that we encounter in several states. Schemes introduced for the restitution of nationalised property have given rise to problems in some states. Some systems allowed for the quashing of final judgments on an appeal by the Prosecutor General, but this has mostly been resolved. Length of judicial proceedings is also a chronic problem in some States, but we also find this issue in the older democratic States.

Question: Do you plan to visit the South Caucasus countries, including Azerbaijan, in the near future?

Answer: I will be going to Armenia in the autumn and I plan to visit Azerbaijan next May.

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