Simplifying the procedure for amending the European Court of Human Rights – the idea of the Statute of the ECtHR

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Master’s Thesis Final Version

Simplifying the procedure for amending

the European Court of Human Rights

– the idea of the Statute of the ECtHR

University of Amsterdam Faculty of Law Public International Law

Supervisor: Dr. Rosanne van Alebeek

12 January 2017

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Abstract.

This thesis assesses the concept of the Statute of the European Court of Human Rights, in terms of its possible usefulness in order to maintain the long-term effectiveness of the Court. The idea itself would provide the Convention system with a faster and more flexible amendment procedure of the institutional provisions concerning the ECtHR, instead of cumbersome and lengthy process of ratification of each new Protocol. The thesis is aimed to answer the research question in three parts. Firstly, the Convention’s amendment procedure is thoroughly presented, including the power of the ECtHR to make amendments to the Convention as well. Then, in the second part, the whole reform process initiated by the Protocol No. 11 and then continued by the Protocol No. 14 is introduced, in order to show how the process of the ratification on behalf of the Member States of the Council of Europe slows down the entering into force of crucial reforms. For instance, the entering into force of Protocol No. 14 was delayed for six years because of Russia’s objection and, in consequence, late ratification. In the last chapter, the overall idea of the Statute is thoroughly presented, focusing on the possible advantages and disadvantages concerning the adoption of such procedure for the Member States. Whether this concept remains too far-reaching solution for the Member States, not willing to be bound by it, or is it a blatant transgression of the judicial and law-making powers of the Court? The answer is stated in this chapter and all the other considerations are summed up in the conclusion.

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Protocol No. 14bis to the Convention for the Protection of Human Rights and Fundamental Freedoms (CETS No. 204) Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (CETS No. 213) Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (CETS No. 214)

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Introduction.

Over the past decades, the European Court of Human Rights (ECtHR)1 has

encountered some serious difficulties concerning its ability to efficiently investigate the

individual applications filed by the citizens against their Member States. The increasing, excessive influx of individual complaints and therefore growing backlog of pending cases in the Court, far outgrown the capabilities of the ECtHR to rule on the applications in the reasonable amount of time. In the result, the Strasbourg machinery

established more than 60 years ago2 by the European Convention on Human Rights

(ECHR)3, ceased to face the growing problems with the sufficient flexibility. To illustrate the seriousness of the problem, it is worth considering the Court’s latest statistics presented in the Table No. 14. The table shows the number of pending applications in Strasbourg between 2000 and 2015. Comparing the data of years 2000 and 2011, it is clearly visible that in only ten years the amount of allocated applications in Strasbourg has increased tenfold. In 2015, there were still 64850 pending cases in the Court. Despite the fact that this number is quite overwhelming, in the context of recent years the Court was able to significantly reduce the high number of pending cases. This trend is the result of a long-term reform of the Court, initiated by the successive Protocols to the Convention.

There could be many reasons for such state of affairs. The ability to obtain a redress from the Member State for the infringement of human rights have made the Convention system a very popular form of protection among the European citizens. More and more countries joined the Council of Europe, and in the early 90’s of the last century the majority of them were the States of “new democracy”, in which the level of protection of human rights was not sufficient. The Court started to face the influx of individual complaints mainly from those countries, which quickly led to the huge

1

The European Court of Human Rights (ECtHR) - an international court established by the European Convention on Human Rights, based in Strasbourg.

2

The Court was established by article 19 of the Convention adopted in November 1950; the Court’s first session had place in 1959.

3

Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, available at:

<http://www.coe.int/en/web/conventions/search-on-treaties/-/conventions/treaty/results/subject/3> [accessed 1 January 2017].

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accumulation of applications still awaiting Court’s consideration. Many applicants had to wait up to few years for their case to be solved. The enlargement of the Council of Europe resulted in a much larger territorial scope of the Court’s jurisdiction, as the complaints to Strasbourg can be made by any natural or legal person. The quality of the Court’s adjudication and the far-reaching repercussions of certain judgments also contributed to the success of the Strasburg machinery. It’s growing recognition among the nationals of the Member States led to the rapid growth of incoming applications to

the Court every year. In fact, the Court has become a victim of its own success5_{: as it is}

shown in the Table No. 26, from 2009 over 50,000 new applications are lodged every

year, and at its climax in 2013 there were 65800 new applications. Only in 2015 the number of complaints has decreased to 40600.

The problem could also lie in the outdated amendment system of the Convention. As the Convention is an international document drafted under auspices of the Council of Europe, there is no supranational mechanism and the ECHR’s content depends completely on the intergovernmental consent of the State Parties. The ECHR’s legal framework contains the Convention itself as the core of the system, then the Protocol norms, changing the Convention by amending or supplementing it, and the Rules of Court, which regulate the institutional issues concerning the ECtHR, e.g. organisation and working of the Court, the composition of the Court, the rules of proceedings, etc. The text of the Convention has been gradually supplemented and amended in subsequent additional protocols, which is the standard amendment procedure of the ECHR. A Protocol to the Convention is simply a treaty which adds one or more rights to the ECHR or amends some of its provisions7. Only those Member States that have signed or ratified the Protocols are bounded by their provisions8. To this day9, 16 additional protocols have been adopted10.

The problem of this amendment procedure which needs to be addressed is the amount of time which is required for the each Protocol to enter into force. Each Member State needs some time to consider whether to be bound by the newest Protocol

5

European Court of Human Rights, „The ECHR in 50 questions”, February 2014, p. 11, available at: <http://www.echr.coe.int/Documents/50Questions_ENG.pdf> [accessed 1 January 2017].

6

Table No. 2 attached to the thesis, p. 54.

7_{ECtHR, “The ECHR in 50 questions (…)”, p. 3.} 8_Ibidem.

9

11 January 2017.

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and apply it to its internal order. As it is presented in the Table No. 311, almost each Protocol took at least one year and up to 7 years to enter into force. The current amendment procedure of the protocols to the Convention can cause and is actually causing a lot of problems. The cumbersome and lengthy process not only do not allow for the quick adoption of the crucial reforms but also dramatically slows down the effect of the already implemented ones, because of their delayed entry into force.

Not only the content but also the meaning of the Convention evolved as well thanks to some of the ECtHR’s doctrines of interpretation and the Court’s ability to amend the Convention through the Rules of Court. The standard amendment procedure of the substantive provisions has been often not necessary because of the ECtHR’s interpretation tools, which allowed for the evolvement of the substance of the broadly framed rights. This way the Court has managed to steer around formal amendment, for example by introducing bindingness of the interim measures and the introduction of the Pilot Judgment procedure. This judicial activism of the ECtHR, as it did not involve the clearly expressed consent of the Member States, has been the subject of the criticism of the Court.

In order to sustain the sufficient level of the effectiveness of the Convention and prevent the Court from failure in examination the applications in the reasonable time, the Member States initiated the process of reform. The main reform was

introduced by the additional protocols to the Convention, namely the Protocol No. 1112

and the Protocol No. 1413. Both of the protocols were meant to rescue the Court from

the backlog of pending cases. As it is presented in the Table No. 1, the number of pending cases in 2000, two years after the Protocol No. 11 entered into force, was no more than 16,000. In 2004, when the Protocol No. 14 was adopted, there were already 50,000 pending cases in the Court. Protocol No. 14, in particular, brought the awaited relief for the Court, but its entry into force required ratification by all of the Member

States, and in result the ratification processtook 6 years. The very important protocol in

11

Table No. 3 attached to the thesis, p. 55.

12

Council of Europe, Protocol 11 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Control Machinery Established Thereby, 11 May 1994, ETS 155, available at:

13_{Council of Europe, Protocol 14 to the European Convention for the Protection of Human Rights and}

Fundamental Freedoms Amending the Control System of the Convention, 13 May 2004, CETS 194, available at:

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terms of crucial reforms, the previous Protocol No. 11 took not much less, because 4 years and 5 months.

The ongoing reform of the Court, concerning the adoption of the Protocols No. 11 and 14, and in addition the outcome of many High-Level Conferences were able to significantly decrease the number of cases in the Court. We can see it clearly in the Table No. 1, which presents the decreasing amount of pending cases in the recent 5 years. But while the problem of the backlog of cases ceased to significantly impair the

effectiveness of the Court14, the problem of cumbersome and lengthy amendment

procedure through protocols may arise in the future. The long ratification process of the Protocol No. 14 is a good example of what could eventually be done to adopt the crucial reforms much earlier in the situation of an opposition of one of the Member States. Therefore the State Parties of the Convention, searching for the solution to the problem,

introduced a new interim solution15, Protocol No. 14bis16. The aim of this Protocol was

to allow for the quicker adoption of some of the crucial reforms introduced by the Protocol No. 14. The biggest innovation of this solution was the fact, that this Protocol would enter almost immediately into force for the ratifying State, preventing other States from blocking the ratification process.

Accordingly, the Member States could choose to be bound by the protocol via the phased procedure of entry into force (like in the case of the Protocol No. 14bis) or they could consent to the reform through a less cumbersome procedure. This topic is relevant especially nowadays when still two Protocols are awaiting ratification (Protocol No. 1517 and 1618). A concept of the simplified amendment mode for the Convention was presented by the group composed of eminent jurists and experts set out

14_{European Court of Human Rights, „Analysis of statistics 2015”, January 2016, page 4, available at:}

<http://www.echr.coe.int/Documents/Stats_analysis_2015_ENG.pdf> [accessed 1 January 2017].

15

A. Buyse, „Protocol 14 Bis - The Interim Solution” (ECHR Blog, 4 May 2009) <http://echrblog.blogspot.nl/search?q=protocol+14+bis> [accessed 1 January 2017].

16

Council of Europe, Protocol No. 14bis to the Convention for the Protection of Human Rights and Fundamental Freedoms, 27 May 209, ETS 204, available at:

17

Council of Europe, Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms, 24 June 2013, ETS 213, available at:

18_{Council of Europe, Protocol No. 16 to the Convention on the Protection of Human Rights and}

Fundamental Freedoms, 2 October 2013, ETS 214, available at:

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by the Committee of Ministers in 2005, namely the “Group of Wise Persons”. The group was established in order to develop an overall strategy to ensure the long-term effectiveness of the European Convention and its mechanism control. The Group of Wise Persons presented its conclusions in its Final Report19 on 15 November 2006. Among other different solutions to ensure the long-term functioning of the Convention control mechanism, the Group presented the idea of the Statute of the Court, as a way to ensure greater flexibility of the procedure for reforming the judicial machinery. The content of the concept of the Statute assumes that a system structured around three levels of rules governing the system should be created:

1) The Convention itself and its protocols, for which the amendment procedure would remain unchanged.

2) The Statute of the Court, whose content still need to be defined, but in general it would comprise provisions relating to the operating procedures of the Court. The provisions of a statute could be amended by the unanimously adopted resolutions of Committee of Ministers, with the Court’s approval. The Group underlined that this new amendment method cannot apply to the substantive rights set forth in the Convention.

3) Rules of Court which could be amended by decisions taken by the Court itself20.

The aim of this thesis is to evaluate whether the concept of the Statute of the European Court of Human Rights could be a possible remedy for the cumbersome and long-drawn-out amendment procedure required for the Convention. The process, lasting at least several years, of entering into force of each new Protocol to the Convention, is inevitably slowing down the necessary reforms of the Court. Therefore the amendment procedure, crucial to ensure the long-term effectiveness of the Court in the times of intensified backlog and influx of individual applications, should be taken into discussion considering changing the standard amendment procedure into a more flexible one. While today the Strasbourg Court is no longer threatened to be crushed by a

19

Report of the Group of Wise Persons to the Committee of Ministers, 979bis Meeting, 15 November 2006, [CM(2006)203], available at:

<https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016805d7893> [accessed 2 January 2017].

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backlog of cases21, and the immediate need for reform can be said to have ceded, for now, new challenges will undoubtedly arise in the future.

The choice of the topic of this Master’s Thesis requires a short explanation. The discussion about the long-term and thorough reform of the Strasbourg system is one of the most significant issues on the subject of protection of human rights. Much different, yet interesting ideas clashed in order to find the best solution to protect the future of the Strasbourg system. It is inevitable that control mechanism created by the Convention, established many years ago, must be continuously developed to keep up the pace with social and economic changes in Europe. While the prevention of violations, better implementation of the Convention at the national level, execution of judgements and better access to the information about the case-law of the Court are still some of the most important issues for the Court judgments to be efficacious, the emphasis should be also put on the guarantees of the long-term effectiveness of the Convention system.

This thesis will concentrate on the adoption of the recent institutional reforms to the European Court of Human Rights and will delve into the need for a new institutional reform procedure, such as the aforementioned Statute of the Court. In order to sufficiently answer the question, the thesis will be divided into three parts. The first chapter is of an introductory character, which aims to show the outline of the Convention amendment system, such as the mechanism of adopting the Protocols to the Convention and the ECtHR’s power to make amendments to the Convention as well, by its jurisprudence and through the Rules of Court. This chapter will also contain some general rules of International law, like the requirement of the State’s consent in order to be bound by a treaty. Chapters II and III form the core of the thesis, as they set out the problems related to this mechanism of amendments to the Convention and also the obstacles encountered in the ratification process of Protocol No. 11 and No. 14, directly related to the former issue. Chapter III, in particular, will address the proposal of the Group of Wise Persons by exploring both the advantages and disadvantages of the proposed more flexible reform procedure. The whole negotiation process and the overall opinion of the concept on the part of the Member States, the Court and other actors will be presented, and the comparison with different international courts and

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tribunals regarding the issue of the Statute and its content. The overall assessment of the whole idea of the Statute of the Court and the possible reasons why it has not been followed by the Member States will be also included in this chapter.

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Chapter 1. Amending the Convention and its machinery.

The first part of the thesis will concentrate on presenting the legal overview of the various ways of amending the Convention and its machinery. First, it will briefly introduce the role of states’ consent to be bound by the international treaty. Then each type of the amendment of the Convention will be thoroughly presented – first of all the role and the meaning of the Protocols to the Convention, then the ECtHR’s power to modify the ECHR through the Rules of Court and by the Court’s evolutive interpretation. These explanations will be a starting point for further considerations in Chapter 2, where the practice of amending the Convention over the past decades will be presented.

1.1. Applicability of the Convention.

Before going into details of the amendment procedure of the Convention, it is necessary to underline the voluntary nature of the international law. As this branch of law is primarily formulated by international agreements, each of them requires the express consent of the contracting parties22. The consent of the state is the source of

legitimacy in the international law23, which simply means that without it the

international treaty cannot give rise to rights or obligations on the part of the state24. The expression of consent to be bound by a treaty can take various forms, the most common of which are the subject of Articles 11-17 of the Vienna Convention on the Law of Treaties25. The Convention provides that consent to be bound may be expressed by

22

M. Shaw, International Law (7th edition, Cambridge University Press 2014), p. 67.

23

K. Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (Cambridge University Press 2015), p. 149.

24

Council of Europe and British Institute of International and Comparative Law, Treaty making: expression of consent by states to be bound by a treaty, The Hague 2001, p. 8.

25_{United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty}

Series, vol. 1155, p. 331, available at: http://www.refworld.org/docid/3ae6b3a10.html [accessed 13 December 2016].

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signature, exchange of instruments, ratification, acceptance, approval or accession or any other means if so agreed26.

The ECHR is, simply, an international treaty and in order for the Member States to be bound by it, it must be signed and ratified. After the 10 ratifications, the Convention entered into force27. The ratification procedure of the Convention, and therefore of each Protocol by the State needs some further explanation. The ratification is a way of expressing the final consent of a state to be bound by an international agreement by an authorized organ. This form should be distinguished from the approval by the head of a state, which does not entail the previous obtaining of the consent of the parliament in the domestic act. The ratification procedure provides the state with the necessary time to obtain the required consent for the treaty and to adopt the necessary domestic legislation and its form differs depends on the state. Therefore also the Protocols do not bound the Member State unless it will consent to it via the ratification through its national procedure. This way every state has a right to become or not to become a party to the amendment28. The current legal framework of the entering into force of new Protocols is different considering each new Protocol.

As it was already stated in the introduction, the current Convention system consists of the Convention, protocol norms and the Rules of Court. The Protocols and Rules of Court will be thoroughly presented in the following subsections of this chapter.

1.2. Protocols to the Convention.

The Convention as a document which was drafted more than 60 years ago, has been modified or supplemented many times through various additional Protocols. Each Protocol extended the catalogue of rights and freedoms by adding new ones to the text of the Convention, adjusted already existing procedures or specified new competencies of the Court. In order to better understand the whole process of new amendments to the Convention, we should realise what protocols basically are and what are their purpose

26_{Council of Europe and British Institute (…), p. 9.} 27

Article 59 of the Convention.

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and meaning29. When it comes to Convention, there are two types of Protocols: those amending30 the text of the Convention and those supplementing31 the text of the Convention. The process of ratification of each Protocol is clearly stated in its text. The former type of the Protocol always requires being ratified by all of the Member States in order to enter into force, irrespective of the number and importance of the amendments. The other type of protocol requires ratification just of a certain number of states. The requirement of the ratification of all of the Member States in the amending type of protocols is intended to allow the reforms entry into force at the same time and thus

ensure the unity of the treaty regime regarding the institutional reforms of the Court32,

like changes to the judicial formations or admissibility criteria. The supplementing protocols allow for the entry into force of the only limited number of states, which results in the plurality of existing treaty regimes of those parties which expressed consent to the new protocol and those remaining which still would be bound by the

original version of the treaty33. Regardless the type of the protocol, each process of the

ratification takes longer than a shorter period of time which is presented in the Table no. 3.

During the ratification of the Protocol No. 14, when the whole process was faced with the opposition of the ratification on behalf of the Russian state, the new interim solution34, Protocol No. 14bis, was introduced in order to some of the main solutions from this protocol could have taken effect to each state which would ratify it. This Protocol was of the amending type and contained some of the crucial reforms of those included in the Protocol No. 14. What is most interesting in the new solution, the Protocol No. 14bis did not require the unanimous ratification by all of the Member States but in the contrary, it would enter into force almost immediately because it required only three ratifications. Thereby the ratification process took a very little time, because of only 4 months. When the Protocol No. 14 was finally ratified by Russia, the Protocol No. 14 bis has immediately ceased to operate.

29

J. Polakiewicz, “Treaty-making in the Council of Europe”, [Council of Europe Publishing, July 1999], page 161.

30

Protocols No. 2, 3, 5, 8, 10, 11, 14, 15.

31_{Protocols No. 1, 4, 6, 7, 9, 12, 13, 14 bis, 16.} 32_{J. Polakiewicz, “Treaty-making (…)”, p. 161-162.} 33

Ibidem, p. 162.

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1.3. European Court of Human Rights and its “judicial activism”.

From the very beginning, the Convention has provided for the creation of the European Court of Human Rights and the existence of an individual application. Establishment of control powers of the Court and the admissibility of the individual petition has been always required the consent of the State. On that basis, the Member States empowered the Court to make final, binding judgments35. Therefore the Court can limit its interpretation and adjudication only up to the expressed consent by the

Member States, which means that the Court should not act as a superior instance36. The

existence of State’s consent is crucial as it impacts the legitimacy of the ECtHR as it prevents the Court from going beyond those developments that the Contracting Parties

are able to accept37. As the current system has always been created by the State Parties

to the Convention, only they can allow for the larger law-making role of the Court. Every State has their chance to oppose the way that the Court interprets the Convention,

for example by not signing and ratifying new protocols to the Convention38.

But the reality differs from this state of affairs. As Europe has changed considerably since the Convention was drafted, the ECtHR have been reflecting these

changes by means of evolutive interpretation39. Because of the doctrine of Convention

as a “living instrument”, the Court gives current and specific meaning to obscure or vaguely formulated terms. Understanding the Convention as a “living instrument” thus permits the continuous adaption to the changing world. Therefore today’s understanding of the Convention consists of thousands of existing judgments and decisions of the ECtHR, constantly expanding the scope of the human rights protection and strengthening the accepted standards. This doctrine of interpretation is complemented and in relation to other doctrines, namely the principle of effective and dynamic interpretation. In the 1950s, when the ‘founding States’ ratified the Convention, they

35_{W. A. Schabas, „The European Convention on Human Rights: a commentary”, Oxford University Press}

2016, p. 8.

36_{K. Dzehtsiarou, „European Consensus (…)”, p. 149.} 37_{Ibidem, p. 150}

38

Ibidem.

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could not anticipate with precision how the Court would interpret the Convention in the future40.

After the massive growth of the incoming individual applications in the 90s, the ECtHR, in order to deal with this problem more effectively, started to exercise its law-making powers more often and to the greater extent, especially in the domain not fully occupied by the competences of the Member States. The excessive length of the negotiating process of treaty amendments to the ECHR and the implementation of their

results also contributed to the development of this ECtHR’s form of law-making41. The

more detailed rules started to emerge not only in the procedural aspects of the functioning of the Court but also in such spheres like the institution of the individual application42.

1.3.1. Rules of Court.

To explain this matter we need to better understand the phenomenon of ECtHR’s judicial activism, meaning the Court’s possibility to impact the procedure of the amendment. The question is how and to what extent the interpretation of the Court can have an effect akin to the procedural reform. Before dwelling into details, it is necessary to examine the term of the Rules of Court. Rules of procedure of international courts and tribunals, as called the Rules of Court regarding the ECtHR, are simply the provisions concerning the internal procedure and organization of the institution43. The Statute of the different courts and tribunals, and in the case of the ECtHR, the provisions of the Convention which establish the Court, are limited only to the fundamental points and refrain from detailed procedural regulations, coming down to the rules of subordinating character44.

The power to formulate and define the rules of procedure is often contained in the statute or the treaty establishing the Court (in case of the ECtHR - the

40 Ibidem. 41_Ibidem. 42 Ibidem.

43_{M. Knust, R. Afshar, „International Courts and Tribunals, Rules and Practice Directions (ECJ, CFI, ECtHR,}

IACtHR, ICSID, ITLOS, WTO Panels and Appellate Body)”, Max Planck Encyclopedia of Public International Law, April 2008, para. 1.

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Convention)45. On the basis of the ECHR the plenary Court adopts the Rules of Court46,

which were last amended in November 201647. The Rules are an important document

which has enabled many evolutions in the day-to-day work of the Court, as well as

securing its independence48.The European Court of Human Rights formulates its rules

without the participation or consultation of the Member States or other institutional organs49, therefore they do not bind the Member States. The rules of procedure lay down such issues as the function of the Registrar and the organization of the registry, the presidency of the court, the composition of the court, the constitution of its chambers and committees and the setting up of sections, the institution of proceedings, etc.

The Rules of Court are able to emerge autonomously as they do not need the Convention as a basis. The development of the Pilot Judgment procedure shows how the Court can influence the new reforms of the Convention’s legal framework. Identifying the need, the Court contributed to the establishment of the new Rule of

Court (Rule 61) in 201150. The Pilot Judgment procedure was intended to avoid

adjudication of the ECtHR in similar or identical matters. The need for the procedure was based on the repetitive cases with the specific dysfunction in the national legal system, which is the source of the violations of human rights. An important contribution

to the creation of pilot-judgment procedure was the case of Broniowski v. Poland51. In

this case, the ECtHR found a violation of the system, which means the absence of proper regulation in national law, which in turn causes a violation of the rights and freedoms protected by the Convention for the entire group or category of persons. Moreover, the European Court of Human Rights pointed out that the deficiencies in national regulations found in one case may lead to further individual complaints. Therefore, the ECtHR imposed on the State to take appropriate legal measures into account all of the people whose rights have been violated by deficiencies in national regulations.

45

Ibidem, para. 2.

46

Article 25 d) of the Convention.

47

Registry of the Court, Rules of Court, 14 November 2016.

48_{M. Oetheimer, G. C. Palomares, European Court of Human Rights, Max Planck Encyclopedia of Public}

International Law [MPEPIL], June 2013, para. 10

49_{M.Knust, R.Afshar, „International Courts (…)”, para. 3.}

50_{European Court of Human Rights, Factsheet - Pilot judgments, November 2016, page 1, available at:}

<http://www.echr.coe.int/Documents/FS_Pilot_judgments_ENG.pdf> [accessed 2 January 2017].

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What is also important considering the pilot judgment procedure, the solution was introduced with the help of the Committee of the Ministers by its Resolution

Res(2004)352. The Resolution was the part of the reforms aimed to improve the

effectiveness of the Court in adjudicating in the aforementioned repetitive cases, concerning structural and systemic problem of the whole legal system of the Member State. Thanks to the aforementioned Resolution, the ECtHR transmitted its judgment to the Committee of Ministers which constituted a basis for the Broniowski v. Poland case, as well as for all the other claimants awaiting judgment of the Court53_{. In the result, the}

establishment of the pilot judgment procedure was based from the beginning on the political will of the Member States, although the consent was not expressed by the Member States’ legislative powers, as its required for ratification, but by their executive

powers represented in the Committee of Ministers54.

1.3.2. Interpretation techniques.

The Rules of the Court also contain the provision of interim measures. Interim measures are urgent measures which, in accordance with the established practice of the

Court, apply only where there is an imminent risk of irreparable damage55. The Court

may, under Rule 39 of its Rules of Court, indicate interim measures to any State party to the Convention. The fact that the basis of the indication of interim measures is not a Convention provision, but merely the 39 Rule of Court, immediately draws attention. This issue is of big significance considering the bindingness of the interim measures, which used to be not binding56. Such interpretation has operated both before entering into force of Protocol No 11 when interim measures could have been indicated by the Commission and ECtHR, and after the Protocol No 11, considering the interim

52_{Committee of Ministers, Resolution Res (2004) 3 on judgments revealing an underlying systemic}

problem, 114th Session, 12 May 2004.

53

L. Caflisch, The Reform of the European Court of Human Rights: Protocol No. 14 and Beyond, 6 Hum. Rts. L. Rev. 403 2006, p. 413.

54_{M. Fyrnys, Expanding Competences by Judicial Lawmaking: The Pilot Judgment Procedure of the}

European Court of Human Rights, 12 German L.J. 1231 2011, p. 1252-1253.

55_{European Court of Human Rights, Factsheet – Interim Measures, September 2016, page 1, available}

at: < http://www.echr.coe.int/Documents/FS_Interim_measures_ENG.pdf> [accessed 2 January 2017].

56

A. Mowbray, A New Strasbourg Approach to the Legal Consequences of Interim Measures, 5 Hum. Rts. L. Rev. 377 2005, p. 379-380.

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measures indicated by new and permanent Court57. However, this interpretation

changed when the Court held in this matter in the case of Mamatkulov and Askarov v.

Turkey58 in 2005. The ECtHR found a violation of the Convention due to the failure of the State in not fulfilling the imposed interim measures, as Turkey did not stop the extradition of the applicants. In this case, the Court decided that Turkey, by failing to comply with the interim measures indicated under the Rule 39 of the Rules of Court, is in breach of its obligations concerning the right to an individual application. Therefore the Court, in order to achieve maximum efficiency in ensuring rights contained in the Convention, extended the breach of the Rule of Court into breaching the provision of Convention itself. Therefore the Court stated that the not obeying the implied interim measure constituted a violation of art. 34 of the Convention (right to an individual application), as the act of Turkey prevented the effective exercise of this right. The Court reiterated its argumentation in two later judgments, mainly in Paladi v. Moldova in 200959 and Kondrulin v. Russia in 201660.

The Court in its judgment not only moved away from the previous existing case-law concerning the non-bindingness of the interim measures established in the case

Cruz Varas and Others v. Sweden61, but also clearly acted against the will of the Member States, as during the drafting of the Convention, the State Parties had rejected the inclusion of the provisional measures in the text of the Convention62. Also in the time of the adoption of the Protocol No. 11, the Commission and the Court strongly recommended to include the abovementioned provision in the ECHR, but the group of

experts appointed by the Member States did not agree63. Thus the judicial creativity of

the Court allowed it to bypass the standard amendment procedure, therefore the ECtHR did not respect the will of the Member States in this matter64.

57

M. Kowalski, Provisional measures indicated by the International Court of Human Rights in cases against Poland, p. 118 [in:] Polish Ministry of Foreign Affairs, VI Warsaw Seminar, Application of the Convention for the Protection of Human Rights and Fundamental Freedoms in the national legal order, Warsaw 2013.

58

Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 104, 4 February 2005.

59_{Paladi v. Moldova [GC], no. 39806/05, §§ 86-90, 10 March 2009.} 60

Kondrulin v. Russia [C], no. 12987/15, 20 September 2016.

61_{Cruz Varas and Others v. Sweden, no. 46/1990/237/307, 20 March 1991.} 62_{A. Mowbray, A New Strasbourg (…), p. 384-385.}

63

Ibidem.

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Chapter 2. Towards the concept of the Statute of the Court.

This chapter will give an overview of the process of adopting and entry into force of Protocols No. 11, 14 and 14bis, as well as of the developments in regards to the still to enter into force Protocols No. 15 and 16. The content of those Protocols will be also briefly presented. This will illustrate the difficulties that are encountered when trying to realise the institutional reform. Therefore in this part I will elaborate on the circumstances which have led to the idea of the simplified procedure of the amendments to the Convention, which leads to the Chapter 3, where the proposal of the Statute of the Court will be set out.

2.1. Adopting the Protocol No 11.

The original text of the Convention provided two-level control mechanism in Strasbourg. The institutions which were supposed to monitor compliance of the State Members with their obligations under the ECHR were initially the European Commission on Human Rights and the European Court of Human Rights. First serious discussions on a comprehensive reform of the Court have already appeared in the 80’s, and then the need for the further reforms started to grow as after 1989 the Council of Europe welcomed new members of the states of the so-called “new democracies” from Central and Eastern Europe, whose legal systems were not prepared for the consequences of participation in the Council of Europe. Conflict of the legal standards produced by the Convention and the Court caused massive numbers complaints against the new Member States. Despite the fact that the membership in the Council of Europe presupposes that the applying state has already adapted its institutions and legal system to its basic principles, all of these countries showed a deficit in the sphere of democracy and human rights. Therefore, the admission of those States resulted in an enormous growth of the amount of the individual applications, which began to outgrow the Court’s actual capabilities and consequently led to a dramatic increase of workload and paralyse of the ECtHR. The Court in its primary shape ceased to fulfil its role properly,

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which extended the length of the proceedings conducted by the ECtHR and lowered the quality of its judgments.

As a remedy to the problem, the Council of Europe adopted Protocol No. 11 to the Convention. The Protocol changed the entire structure and rules previously adopted by the Member States and in place of European Commission on Human Rights and the European Court if Human Rights, it created a single ECtHR. The reform aimed to strengthen the role of the Court making it a full-time institution. What is more, by abolishing optionality of the ECtHR, the Protocol obliged all State Parties to recognize its jurisdiction. Although the Court’s jurisdiction and the right of an individual application finally became mandatory, both of them were already voluntarily accepted

by each Member State65.

The adoption of the text of the Protocol No. 11 and then the process of its ratification by all of the Member States was prolonged because of the inability to reach a compromise on the future structure of the ECtHR. The adoption of the text of the Protocol was the result of several years of intense debate among the Member States and as we can see it in the Table no. 3, the ratification period took additional 4 years and 5 months. The Dutch and Swedish governments initiated the discussion on the text of the Protocol in the early 1990s with an idea of introducing the two-level system of protection, namely the Commission as a first instance court and the ECtHR as an

“appeal court”66. However, the idea has gained some level of support, the solution of the

establishment of a one and single Court has become more and more popular67. The single Court solution was also supported by the President of the Court and the

Secretary-General of the Council of Europe and the Parliamentary Assembly68. Creating

a full-time Court was considered as a long-term solution providing a long-time

effectiveness of a Strasbourg machinery69. What is surprising, the Commission and the

Court was in the opposition of this idea, as they wanted to improve the already existing system of protection70. The clashing ideas prevented the Member States from finding

65

S. Greer, Part IV: Protection, 20. Europe [in]: D. Moeckli, S. Shah, S. Sivakumaran, D. Harris, International Human Rights Law, Oxford University Press 2013, p. 424.

66_{E. Bates, The evolution of the European Convention on Human Rights : from its inception to the}

creation of a permanent court of human rights, Oxford University Press 2010, p. 454.

67_Ibidem. 68_{Ibidem, p. 455.} 69

Ibidem.

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one and definite solution, and the so-called impasse in the negotiations lasted until 199271.

The long awaiting compromise was reached in 1993 at a meeting in Stockholm when the Protocol No. 11 containing the single court solution was finally drafted72. Although the Member States agreed on the shape and form of the new Court, the draft Protocol did not reconcile all of the Member States’ positions. The British government

was strongly opposed to the proposal of a mandatory individual application73. In view

of the British Government, such solution did not allow for keeping the right balance between the authority of the Court and the will of the Member States, which should

possess a certain level of control over the Court74. Many stated that the British opinion

was based on the Court’s recent unfavourable judgments against the United Kingdom, and some States in a similar situation, e.g. Turkey, expressed some sympathy with the British view75. Eventually, the Member States were not persuaded with the British standpoint, as they regarded the mandatory individual petition as a crucial aspect of the reform76.

2.2. Further reform of the Court – Protocol No. 14 and Protocol

No 14bis.

The entry into force of the Protocol No. 11 did not put an end to all the problems, but, on the contrary, led to the further growth of the number of complaints. The ECtHR again faced the problem of growing number of incoming applications outgrowing its capabilities. The influx of individual applications still waiting to be examined kept increasing and the Court needed longer time to rule on each case. The Council of Europe was forced to seek further reform proposals and the ongoing debate led to subsequent changes in the functioning of the Strasbourg system. These changes were the result of the adoption in 2004 of Protocol No. 14 to the Convention, which entered into force six years later.

71_{Ibidem, p. 455-456.} 72 Ibidem, p. 456. 73_{Ibidem, p. 458.} 74_{Ibidem, p. 458-459.} 75 Ibidem, p. 459. 76_Ibidem.

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The Protocol No. 14 provided the Court with some crucial reforms and brought the long-awaited relief for the ECtHR. Although the Protocol itself did not provide such a radical change in comparison to the Protocol No. 11, the reforms it has introduced concerned three main areas: strengthening the ability to reject clearly inadmissible cases, the introduction of measures to simplify the procedure in repetitive cases and the establishment of a new admissibility criterion (“the significant disadvantage criterion”). All of these reforms helped the Court to save the time and not concentrate on unfounded complaints, but focus on those that were important in the context of protection of human rights. For this purpose, a single judge was allowed to reject clearly inadmissible applications. The applications which were not declared inadmissible could be referred to the Committee of three judges or to the Chamber of the Court.

Despite the importance of the reforms, entry into force of the Protocol No. 14 was not an easy procedure. The requirement of the ratification of this Protocol by all of the 47 State Parties caused a huge delay in the amendment of crucial provisions, which was caused by Russia’s late ratification. The Russian opposition took the form of a denial of the approval for the ratification on behalf of the Russian Parliament (lower

house of parliament, Duma)77. The media debate on the Russian opposition showed that

the refusal to ratify the Protocol has not been based on the critique of the reform themselves, but was a response to a perceived discrimination against Russia, as in the years preceding the adoption of the Protocol this State lost some of the important cases

in Strasbourg78. What is more, most of the individual applications filed in the Court at

that time has been submitted by the Russian citizens, what was one of the reasons for the constant criticism of Russia by the ECtHR79.

During a ratification process, in order not to slow down the entry into force of important reforms, State Parties came to an agreement that allowed earlier implementation of some of the solutions provided by the new Protocol. In 27 May 2009

the Madrid Agreement80 was adopted, under which it was decided by consensus that the

77

E. Barry “Russia Ends Opposition to Rights Court”,

http://www.nytimes.com/2010/01/16/world/europe/16russia.html?_r=1&ref=european_court_of_hum an_rights [accessed on 18th of November 2016).

78

B. Bowring, The Russian Federation, Protocol No. 14 (and 14bis), and the Battle for the Soul of the ECHR, Goettingen Journal of International Law 2 (2010) 2, 589-617, p. 605.

79_{Ibidem, p. 606-607.} 80

Council of Europe, Agreement on the provisional application of certain provisions of Protocol No. 14 pending its entry into force, 12 May 2009 Madrid, ETS 194.

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provisions concerning the new composition of the panels can be used by the countries which agree to it. In comparison with the Protocol No. 14, the Protocol No. 14bis was an “additional protocol”, which could enter into force not by all of the Member States like in case of the standard procedure of ratifying the amending protocols, but after its ratification by a certain number of state parties81. The Protocol No. 14bis entered into force after 4 months, as it required ratifications by only three State Parties. This Protocol expired as soon as the Russian Federation finally ratified the previous Protocol No. 14. After having been blocked by the Russian Duma for several years, Protocol No. 14 finally entered into force in 2010, and the Protocol No. 14bis ceased to operate.

The obstacle caused by the Russian State in terms of quick ratification of the Protocol No. 14 was not the only one which was encountered in the process of adopting the new package of reforms. Some of the proposals of the newest Protocol, such an introduction of a new “significant disadvantage” admissibility criterion, was at the

beginning strongly opposes to accept by some of the State Parties82_{. The new proposal}

was criticised for being too imprecise as it left a wide margin of appreciation to the

Court83. One of the not included provisions in the text of the Protocol No. 14 was the

proposal of the Parliamentary Assembly to increase the number of judges84. It was rejected as it was strongly opposed by Russia85.

2.3. Protocols No. 15 and No. 16.

Currently, there are two additional protocols under the procedure of the ratification, namely the Protocol No. 15 and the Protocol No. 16. The former of them, the amending type of protocol which requires the ratification of all of the Member States, has still not entered into force for 3 years and 6 months86. One of the main provisions of the Protocol No. 15 is an introduction to a reference to the principle of subsidiarity and the principle of margin of appreciation in the Preamble to the Convention. The first principle means that the supervisory mechanism established by

81

B. Bowring, The Russian Federation (…), p. 614.

82_{L. Caflisch, The Reform (…), p. 410.} 83

Ibidem.

84_{C. G. Hioureas, Behind the Scenes of Protocol No. 14: Politics in Reforming the European Court of}

Human Rights, 24 Berkeley J. Int'l L. 718 2006, p. 743.

85

Ibidem.

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the Convention has, in principle, subsidiary character and cannot substitute the national measures taken on behalf of the States87. In accordance with this guiding principle of the Convention, the Court’s role is not to act on behalf of the State in the field of the protection of human rights. On the contrary, the Court respects that the national authorities have primacy in ensuring the protection of human rights, and Member States can take different paths to ensure the rights and freedoms of their citizens, just to respect the minimum standards established by the Convention. What is more, the Member States should not only refrain from interfering with the rights and freedoms contained in the ECHR but also take active steps to prevent the violations and repair their consequences88.

The most controversial doctrine of the Convention, related to the principle of subsidiarity, is the margin of appreciation. This concept allows the Court to exercise its supervision of the implementation by the State Parties of their obligations under the Convention with a certain amount of discretion. This discretion depends on the specific conditions and therefore the Court in examining the violation of the human rights, considers also the practical differences and the local context of the Member State in its application of the ECHR. The protocol also reduces the time period in which it is admissible to file a complaint: it shortens it from six to four months period. It also modifies the criterion of the “significant disadvantage”.

In an interval of just three months after the opening for signature of the Protocol No. 15, on 2 October 2013 a next additional protocol was opened for signature. Protocol No. 16, called the "Protocol of Dialogue", is a supplementing type of Protocol which aims to strengthen the cooperation between the highest national courts and the Court. It introduces the possibility on behalf of the highest courts of a State Party to

submit a request for an advisory opinion to the Grand Chamber of the ECtHR89 , which

content relates to the interpretation and application of the rights and freedoms set in the ECHR and its additional protocols. The request for an opinion cannot be filed in the abstract, it must be linked to a specific pending case in the Court. Protocol No. 16 thus

87

Article 1 of the Convention: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”

88_{B. Rainey, E. Wicks, & C. Ovey, The European convention on human rights, Oxford University Press}

2014, p. 86.

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extends the scope of advisory opinions. Its entry into force requires ten ratifications – up to this date90 it was not ratified by the Member States for more than three years.

2.4. Towards the realization of the Concept of the Statute.

The intensified discussion about the future of the Court after entering into force of Protocol No. 11 and before entering into force of Protocol No. 14, revealed the urgent need for faster and more flexible methods for the amendment procedure. The first proposal concerning such need was expressed during the European Ministerial

Conference on Human Rights91 held in Rome on 3-4 November 2000. In order to find

the solution, two bodies were established to thoroughly reflect and study different ways

of possible reforms92, the Steering Committee for Human Rights (CDDH) and the

Evaluation Group on the European Court of Human Rights set up by the Committee of Minister Deputies in February 2001. Both bodies reflected on the same conclusion that

a possible Statute should only deal with the procedural part of the Conventionand that

the enactment of the Statute as a binding resolution of the Committee of Ministers could be a reasonable remedy against time-consuming drafting and ratification process93. In spite of the support gained by this proposal, no follow-up to it was pursued at the next stage of reforming the European Court which had been concluded with the adoption of Protocol No. 14 in 2004.

Although the proposal was not included during the drafting process of the Protocol No. 14 to the Convention, the idea re-emerged during the Third Summit of Heads of a State and Government of the Council of Europe94. In 2005, during the Summit, the Committee of Ministers set up a group of experts called “Group of Wise Persons”, to develop an overall strategy to ensure the long-term effectiveness of the European Convention and its mechanism control. The Group of Wise Persons presented

90

12 January 2017.

91_{Council of Europe, European Ministerial Conference on Human Rights and Commemorative Ceremony}

of the 50th anniversary of the European Convention on Human Rights Rome, 3-4 November 2000, Council of Europe Publishing, June 2002.

92

K. Drzewicki, „Confronting Two Models of Simplified Procedures for Amending the European

Convention on Human Rights”, [in] Concepts of General Remedy and Simplified Procedure for Amending the Convention in the Post-Interlaken Process. 4th Warsaw Seminar, 9-10 September 2010, Warsaw: KSAP and Kontrast, 2010, page 127.

93_Ibidem. 94

The Third Summit of Heads of State and Government of 46 Member States of the Council of Europe was held in Warsaw on 16-17 May 2005.

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its conclusions to the Committee of Ministers, first in its Interim Report95 on 10 May 2006, and then in its Final Report 6 months later, on 15 November 2006.

The Final Report deserves special attention, as it proposed a comprehensive reform of the ECHR system on many levels. Under the first heading of the Report,

namely the “Greater flexibility of the procedure for reforming the judicial machinery”96,

the Group introduced the concept of the Statute of the Court as a possible change to the traditionally accepted lengthy and cumbersome process of amending Protocols to the ECHR. The content of the idea will be thoroughly presented in the next chapter of the thesis.

The Group of Wise Persons’ Proposal was thoroughly presented and evaluated during the Colloquy organised by the San Marino chairmanship of the Committee of

Ministers97, which was held on 22-23 March 2007. Various actors expressed their ideas

and opinions on the Report. The ECtHR itself did not perceive the Report as “revolutionary”98, although it called the idea of the Statute of the Court as “realistic and practical”99. In its later opinion100, the Court referred to the proposal in a more enthusiastic manner: “Given that the Statute would encompass organisational and procedural provisions, it would be desirable for the Court to have the right to initiate the amendment procedure, in addition to the right to approve amendments proposed by the Committee of Ministers101”. On the other hand, the Parliamentary Assembly did not address the idea of the Statute at the Colloquy at all. The former Chairperson of the Steering Committee for Human Rights (CDDH) expressed his feeling that the idea “was discarded too quickly in the 2000-2004 process”102. The NGO’s103 referred to the

95_{The Interim Report of the Group of Wise Persons to the Committee of Ministers, 116th Session of the}

Committee of Ministers, 10 May 2006, CM(2006)88, available at:

<https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805d7ff7> [accessed 12 January 2017].

96_{Para. 44-49 of the Final Report of the Group of Wise Persons.} 97

Council of Europe, Directorate General of Human Rights, Future developments of the European Court of Human Rights in the light of the Wise Persons’ Report Colloquy organised by the San Marino

chairmanship of the Committee of Ministers of the Council of Europe in San Marino, 22-23 March 2007, Council of Europe April 2007.

98

Council of Europe, Directorate General of Human Rights, Future developments (…), p. 38.

99

Ibidem, p. 40.

100_{European Court of Human Rights, Opinion of the Court on the Wise Persons’ Report, adopted by the}

Plenary Court on 2 April 2007.

101_{European Court of Human Rights, Opinion of the Court (…), p. 2.}

102_{Council of Europe, Directorate General of Human Rights, Future developments (…), p. 52.} 103

Amnesty International; Justice; European Human Rights Advocacy Centre (EHRAC); Liberty; Human Rights Watch; Redress; Interights; Aire Centre.

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solution most exhaustively. While the NGO’s understood the greater flexibility provided by the reform, they underlined that the content of the Statute would have to be agreed in a transparent process104. Furthermore, in the NGO’s opinion, the increased powers conferred to the Committee of Ministers require transparency and consultation105.

The discussion about the reform had not stopped, even after the entry into force of Protocol No. 14, when it was widely known that the Protocol would not solve all the problems associated with the increase of the amount of pending cases at the Court. In the debate, which went on for several years in the Council of Europe, various proposals for change were put forward. Such proposals for broad reform were the subject of the Conference in Interlaken106, at which representatives of the 47 Member States of the Council of Europe met to discuss the future of the Court. The result of this meeting was

the Interlaken Declaration107, which highlighted the urgent need for a balance between

the number of judgments of the ECtHR and the number of incoming applications.

Interlaken Conference was a kind of a “road map” of comprehensive and in-depth reform of the Court, with a set timeframe until 2019 and the underlying assumption of the importance of the principle of subsidiarity. Although the Conference itself addressed the need for the simplified and faster amendment procedure, it addressed the concept of the Statute with some caution and did not indicate clearly the

exact choice of this method among others concerning the simplified procedure108: “The

Conference calls upon the Committee of Ministers to examine the possibility of introducing by means of an amending Protocol a simplified procedure for any future amendment of certain provisions of the Convention relating to organisational issues. This simplified procedure may be introduced through, for example:

a) a Statute for the Court;

104_{Council of Europe, Directorate General of Human Rights, Future developments (…), p. 86.} 105

Ibidem.

106_{The Conference was held on 18-19 of February 2010.}

107_{High Level Conference on the Future of the European Court of Human Rights, Interlaken Declaration,}

19 February 2010.

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b) a new provision in the Convention similar to that found in Article 41(d) of the Statute

of the Council of Europe.”109

The Declaration set out five phases for the process of reform110, among which

the Conference “invited the Committee of Ministers to issue terms of reference to the competent bodies with a view to preparing, by June 2012, specific proposals for measures requiring amendment of the Convention; these terms of reference should include proposals for a filtering mechanism within the Court and the study of measures

making it possible to simplify the amendment of the Convention”111.

In the course of the preparation for the Interlaken Conference, the Swiss Federal Department of Foreign Affairs took up the proposal of establishing a Statute for the Court and mandated Helen Keller, Daniela Kühne and Andreas Fischer (University of Zurich) with the drafting work. The Draft Statute for the European Court of Human

Rights112 together with the commentary was finished in 2010.

Afterwards, the Declaration of the Conference in Izmir113, which was held on

26-27 April 2011, also pointed out the fact that Protocol No. 14 will not provide the comprehensive settlement for the problems concerning the Convention system. Taking account of the work made by the previous Conference in Interlaken, the Izmir Declaration also insisted on the preparatory work for the simplified procedure of amendments to the ECHR, briefly mentioning among different solutions the Statute of the Court.

The need for further reform of the Court was the reason for the next Conference, this time in Brighton on 19-20 April 2012. Also, the Brighton

Declaration114 as its main objective has chosen a significant reduction in the amount of

pending cases on the docket of Strasbourg. It focused on urgent issues concerning the

109

Para. 12 of the Interlaken Declaration.

110

E. Bates, The evolution (…), p. 509.

111_{The Interlaken Declaration, p. 6.} 112

H. Keller, D. Kühne, A. Fischer „Draft Statute of the European Court of Human Rights – A Contribution to reforming the Convention System”, Human rights law journal : in association with the International Institute of Human Rights, International Institute of Human Rights, Strasbourg, Vol.30:

no.1/12(2009/2010), p. 17-34.

113

High Level Conference on the Future of the European Court of Human Rights

organised within the framework of the Turkish Chairmanship of the Committee of Ministers of the Council of Europe, Izmir Declaration, 27 April 2001.

114

High Level Conference on the Future of the European Court of Human Rights, Brighton Declaration, 20 April 2012.

Simplifying the procedure for amending the European Court of Human Rights – the idea of the Statute of the ECtHR

Master’s Thesis Final Version