Walter, Torsten - Council of Europe

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defended against arguments raised by in particular Governments. Human Rights treaties should be read so as to be in harmony with each other in the areas which they mutually cover. 4. Technical points Article 35(2)(b) of the Convention should be modified, or at least the Rules of the ECtHR should be construed, so as to prevent applications being rendered inadmissible on the ground that the “matter… has already been submitted to another procedure of international investigation or settlement.” This exclusion should only apply where the ‘matter’ has been submitted by the Applicant to an international judicial procedure before a qualified judge or judges which requires the Applicant to be given notice and a proper opportunity to respond to any submissions and evidence from the other party and which issues legally binding decisions which are, in practice observed by the other party and which include a declaration of rights and remedies capable of compensating any breach of them. For the avoidance of doubt this would exclude from the scope of Article 35(2)(b) of the Convention the fact that an Applicant had raised the matter before the ILO supervisory bodies or the European Social Rights Committee. No Application should be rendered inadmissible on a ground which has not been raised with the Applicant by the opposing State or by the ECtHR and in relation to which the Applicant has not had a proper opportunity to respond. C. Possible reforms to help cut the backlog of cases at the court From the outset, it should be acknowledged that the Court has put enormous efforts in coping with the aim of drastic reduction of the number of pending cases. From the end of 2011 with about 160,000 applications pending to 2013 (30 September) the number of outstanding applications has been reduced to about 110,000. This is an enormous step forward. An important reason for this progress is surely related to the introduction of the system of a single judge deciding on admissibility. This new system should however not result in a situation in which the pressure on the Court to reduce the backlog would lead to neglecting important cases which require an in-depth examination. As to the measures which are aimed at cutting the backlog, it should be recalled that it is the mostly the States’ responsibility to prevent human rights violations and therefore lead to less work for the Court. Besides this important general measure the following items should be further examined and possibly implemented: - more resources (in financial and Registry staff terms), - additional judges, - question the respondent Government whether it wishes to recognise a violation of the Convention (in cases in which the Court had found a violation of the Convention in similar circumstances), - question the applicant whether he or she would like to withdraw the application in cases where there the Court had already decided in similar circumstances that the Convention had not been violated. 6
D. The procedure for implementing court judgments and the role of national authorities The Convention devolves the role of supervising the implementation of the Court’s judgments to the Committee of Ministers. It has to be admitted that no other institution or organ of the Council of Europe would have more powers to effectively supervise the implementation. 1. Measures by the Member States directly concerned: Effective execution Two dimensions should be highlighted. The first concerns the resources of the respective department. Further staff is necessary to enable the Committee of Ministers to adequately consider the cases under its supervision. At the same time, the working methods should be improved in order to increase pressure on the Governments concerned – all of which in a harmonious way - recognise and accept that it is their duty to implement effectively the Court’s judgments. Moreover, the Committee of Ministers should make use of the powers with which it has been provided under Protocol No. 14, namely to fine states for their failure to implement judgments (to be paid to the Human Rights Trust Fund). The second dimension concerns the Contracting Parties. The number of pilot judgments clearly indicates that the Governments concerned were not willing to solve even a systemic problem. 2. Measures by the Member States indirectly concerned: Effective implementation The Convention does not foresee any direct consequences of the judgments of the Court on Contracting Parties who were not parties in the proceedings. At a first glance, this might appear consistent with different legal principles. However, this is one of the main reasons why there is an influx of applications. If the Governments which are not directly concerned monitored and then quickly and effectively implemented all the Court’s judgments which are relevant to similar situations in their own countries, then the number of (future) applications would decrease. Therefore, this is a key element in assisting the Court to cope with its workload. Concrete measures by the Governments could be the creation of a focal point which would be responsible for dealing with all the consequences of a judgment (even if it is not directly linked to the country concerned). This would require: - first and foremost a quick and reliable translation of all judgments of the Court (categories I – IV) in the language of the country, - publication of the translation by way of an authentic online version on the internet in an easily accessible way, - examination of all possible consequences of a successful application in national legislation and practice (in particular indicating the number of persons concerned and giving priority to those cases concerning large numbers of persons) 7
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Walter, Torsten - Council of Europe

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