Friday, 15 May 2009

ECHR Protocol 14-bis

Interesting goings-on in Strasbourg, the home of the European Court of Human Rights...

For those not familiar with the operations of the ECHR, here is a potted history of his operations. The European Convention on Human Rights began life in 1950, in the bleak shadow of World War II. The Convention enshrines many rights which you will probably be familiar with - right to life, right to freedom from inhuman and degrading treatment et al.

When the ECHR was created it originally created two bodies - The European Commission on Human Rights and The European Court of Human Rights. These got going in 1954 and it is important to stress that the Court didn't do a great deal as the Council of Europe (the organisation which ultimately oversees the Convention) preferred the more political means of resolving violations via the Commission. Accordingly, ECHR case law between 1954 - 1998 is fairly thin although the cases that were decided tended to be hugely significant for the parties involved. Over the 44 years of the twin system of Court & Commission, the Court did see increasingly more cases...

In 1998, it was decided to make the Court full-time and scrap the Commission in its original form. The was a crucial shift; whereas it used to be the Commission that decided which cases would end up in the Court, now it was the Court's responsibility.

The 'admissibility criteria' is given by Article 35. In a nutshell, there are eight different criteria which the court applies to a case in an initial hearing to decide whether to hear the case in full. Of these criteria, which are mostly procedural, the most important and interesting one is whether the case is "manifestly ill-founded". What does this mean? It is not entirely clear what threshold this imposes and remains a flexible tool for the Court.

Why all this discussion of dry-sounding admissibility criteria and what's the relevance of Protocol 14-bis? Over time, the number of countries that have signed up to the ECHR has increased considerably. There are currently 47 countries that come within the jurisdiction of the ECHR - including Russia. This has meant that the case-load for the Court is absolutely phenomenal and with the finite resources at Strasbourg it means that the system is almost at breaking point.

Protocol 14 was drafted to try and resolve this. The Court would be restructured and the admissibility criteria would be tightened up so that a case might be inadmissible if the applicant has not suffered 'significant disadvantage'. Protocol 14 has not come into force since the Russians have failed to sign it. This is because it actually suits the Russians quite nicely to have an over-loaded and inefficient Court so that their dubious (to put it lightly) actions in Chechnya can continue with the prospect of justice somewhere long into the distance (click this for more).

So, Protocol 14-bis - I imagine 'bis' means something like an 'interim solution' - has been prepared. This essentially allows for the speedy restructuring of the Court in cases that relate to countries that sign it. Crucially, this Protocol doesn't need all 47 countries to sign it, so Russia's inertia can't hold up an entire continent's human rights protection.

The Protocol doesn't mention the 'significant disadvantage' aspect of the admissibility criteria although word on the grapevine is that the 'manifestly ill-founded' criterion is wielded by the Court in such a way that it is, statistically, highly-unlikely that an unimportant case will make its way to a full hearing. In practice, the admissibility stage at the ECHR amounts to a 'mini-merits hearing' and if you're a lawyer who manages to get your client through this stage you have done very well indeed (the legal equivalent of a hole-in-one).

There are clearly some cunning people in Strasbourg and to come up with such a solution shows great creativity. Let's hope it works.

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