Why Russia holds the key to creating a streamlined European Court of Human Rights

The European Court of Human Rights has become a victim of its own success. Applications are up by 23% compared with last year. There are some 95,000 cases pending. Last month, the Strasbourg court delivered its 10,000th judgment.

Although it is getting through more cases every year, staff and judges cannot keep up. The court has recently received more than 2,700 applications against Georgia from people in South Ossetia, quite apart from the case that Georgia itself is bringing against Russia.

Despite new court reforms that were introduced almost exactly ten years ago, the rapid increase in cases soon led to calls for more streamlined procedures. After much debate, an amendment to the European Convention on Human Rights, known as protocol 14, was opened for signature in 2004.

It included some pretty technical changes designed to simplify procedures, allowing a single judge to strike out the 90% of cases that have no chance of success. Fewer judges would be needed to take decisions, and they would serve for longer.

By October 2006, protocol 14 had been ratified by every state in the Council of Europe – except Russia. Without the approval of all member states, it cannot take effect.

Why are the Russians still blocking these much-needed reforms? The court’s president, Jean-Paul Costa, tried to find out on an official visit to Moscow last year. ‘We were exceedingly well received by the highest courts in the Russian Federation, by the minister of justice and by the prosecutor-general,’ Judge Costa told me on a visit to London last week.

‘Everybody said to us, "there is some resistance but we are sure that protocol 14 will be ratified by Russia very soon".

‘When we tried to find out why it was not so, they either gave no explanation or explanations that were very strange – that decisions by a single judge would be contrary to the legal tradition of Russia. I could not take that very seriously.’

Is the real reason that Russia has more outstanding complaints against it than any other country – a quarter of all valid applications? Or that Russia is second only to Turkey in the number of breaches recorded against it? Was Russia trying to blackmail the court in some way?

The French judge simply does not know. ‘My impression is that Russia, when it signed the convention, did not expect that an international court – such as the European Court of Human Rights – could be in a position to condemn a state such as Russia,’ says Judge Costa.

‘I suppose – but this is purely speculation – that for them it is very difficult to denounce the convention and leave the Council of Europe.’ That would create headlines around the world, he explained, but nobody would notice if they refused to ratify a technical protocol.

‘So my purely personal impression... is that they prefer to be in the system but not to strengthen it [by ratifying the protocol]’.

There is little the other member states can do, he explains. They cannot threaten to kick Russia out. A country is not under any obligation to ratify a treaty, even one it has signed.

Does he think Russia will ever allow protocol 14 to come into effect? ‘Logically, they should not,’ he replies with surprising candour. ‘If they have not ratified yet, why should they soften their attitude towards the court at a time when they have this very serious conflict with Georgia?’

Even then, the court would have lost more than two years, during which the backlog of cases had increased. Internal measures would be needed to deal with this, and the Committee of Ministers would be asked for their support.

But if the court can reform its own procedures, why did it need protocol 14? Judge Costa tells me this was not the court’s idea in the first place. It was the member states that decided in 2004 to have a new protocol. ‘The court was consulted about some measures, of course, but it was not really the drafter.’

What, then, can the court do without a new protocol? Understandably, it already gives priority to new or important claims. But cases that do not involve a new point of law and those that stand no chance of success may drift for up to three or four years before being thrown out.

One option would be to declare these cases inadmissible at a much earlier stage. But that would need states to do more themselves to ensure that cases were decided promptly and their decisions enforced at domestic level.

Another option for the Strasbourg court would be to make more use of ‘pilot judgments’ – rulings on test cases that would resolve other similar claims.

‘Since being elected president of the court at the beginning of last year, I have hoped protocol 14 would be ratified,’ Judge Costa tells me.

Now – and he did not know whether this was linked to Georgia’s complaints against Russia – he had the impression that protocol 14 was unlikely to enter into force.

So when the 47 member states meet to celebrate the court’s 50th anniversary next year, he will be asking them what they want the court to do. Do they want it to improve the protection of human rights in Europe? Or simply to carry on much as before?

Put like that, there can be only one answer. If the court simply continues registering applications and dealing with them one by one, he fears it will overflow.

Judge Costa does not want to share Madame de Pompadour’s epitaph: après nous, le déluge.