Protocol 12 - discrimination

Applies the current expansive and indefinite grounds of prohibited discrimination in Article 14 to the exercise of any legal right and to the actions (including the obligations) of public authorities.

The Protocol entered into force on 1 April 2005 and has (As of July 2009) been ratified by 17 member states. Several member states — namely Bulgaria, Denmark, France, Lithuania, Malta, Monaco, Poland, Sweden, Switzerland and the United Kingdom — have not signed the protocol.^[29]

The United Kingdom Government has declined to sign Protocol 12 on the basis that they believe the wording of protocol is too wide and would result in a flood of new cases testing the extent of the new provision. They believe that the phrase "rights set forth by law" might include international conventions to which the UK is not a party, and would result in incorporation of these instruments by stealth. It has been suggested that the protocol is therefore in a kind of catch-22, since the UK will decline to either sign or ratify the protocol until the European Court of Human Rights has addressed the meaning of the provision, while the court is hindered in doing so by the lack of applications to the court concerning the protocol caused by the decisions of Europe's most populous states — including the UK — not to ratify the protocol. The UK Government, nevertheless, "agrees in principle that the ECHR should contain a provision against discrimination that is free-standing and not parasitic on the other Convention rights".^[30] The first judgment finding a violation of Protocol No. 12 was delivered in 2009 — Sejdić and Finci v. Bosnia and Herzegovina.

Protocol 13 - complete abolition of death penalty

Provides for the total abolition of the death penalty.^[31] Currently the majority of the Council of Europe has ratified Protocol 13. Poland and Armenia have signed but not ratified the protocol, whilst Russia and Azerbaijan have not signed it.^[32]

Procedural and institutional protocols

The Convention's provisions affecting institutional and procedural matters has been altered several times by mean of protocols. These amendments have, with of the exception of Protocol 2, amended the text of the convention. Protocol 2 did not amend the text of the convention as such, but stipulated that it was to be treated as an integral part of the text. All of these protocols have required the unanimous ratification of all the member states of the Council of Europe to enter into force.

Protocol 11

Protocols 2, 3, 5, 8, 9 and 10 have now been superseded by Protocol 11 which entered into force on 1 November 1998.^[33] It established a fundamental change in the machinery of the convention. It abolished the Commission, allowing individuals to apply directly to the Court, which was given compulsory jurisdiction and altered the latter's structure. Previously states could ratify the Convention without accepting the jurisdiction of the Court of Human Rights. The protocol also abolished the judicial functions of the Committee of Ministers.

Protocol 14

Protocol 14 follows on from Protocol 11 in proposing to further improving the efficiency of the Court. It seeks to "filter" out cases that have less chance of succeeding along with those that are broadly similar to cases brought previously against the same member state. Furthermore a case will not be considered admissible where an applicant has not suffered a "significant disadvantage". This latter ground can only be used when an examination of the application on the merits is not considered necessary and where the subject-matter of the application had already been considered by a national court.

A new mechanism was introduced by Protocol 14 to assist enforcement of judgements by the Committee of Ministers. The Committee can ask the Court for an interpretation of a judgement and can even bring a member state before the Court for non-compliance of a previous judgement against that state. Protocol 14 also allows for European Union accession to the Convention. The protocol has been ratified by every Council of Europe member state, Russia being last in February 2010. It entered into force on 1 June 2010.^[34]

A provisional Protocol 14bis had been opened for signature in 2009.^[35] Pending the ratification of Protocol 14 itself, 14bis was devised to allow the Court to implement revised procedures in respect of the states which have ratified it. It allowed single judges to reject manifestly inadmissible applications made against the states who have ratified the protocol. It also extended the competence of three-judge chambers to declare applications made against those states admissible and to decide on their merits where there already is a well-established case law of the Court. Now that all Council of Europe member states have ratified Protocol 14, Protocol 14bis has lost its raison d'être and according to its own terms ceased to have any effect when Protocol 14 entered into force on 1 June 2010.

2.Evolution of the European Human Rights Protection Mechanism in the light of Court's workload (Protocol No. 1, Protocol No. 14 to the Convention).

Since its creation, the European Court of Human Rights (ECHR) has protected human rights acrosss the continent by interpreting and applying in its judgments the European Convention on Human Rights and Funda12 mental Freedoms. Today it protects the rights of 800 million people in 47 states.The accession of new states to the Convention after the fall of the Berlin wall in 1989 and a wider awareness of the role of the Court in all Europe have caused a spectacular increase of the applications filed every year. This has put the effectiveness and the future of the Court at risk. The number of pending applications before the Court has constantly grown. Whereas in 1999 8,400 applications were allocated to a judge committee or chamber, this figure rose to 27,200 in 2003, when around 65,000 applications were already pending. In 2009 57,200 applications were allocated to a judicial formation and the backlog reached 119,300 applications. The Court’s excessive workload is due to two factors in particular:

• processing of a great number of applications that are declared

inadmissible (more than 90% on which a decision is made)

• applications related to structural issues in which the Court has

already delivered judgments finding a violation of the Convention

and where a well established case law exists.

These applications,called repetitive cases, account for around 60% of the judgments of the Court every year. The Council of Europe has searched for solutions to these problems along the years. The system has subsequently developed into a predominantly legal process over years; the most outstanding changes were established by Protocol 11 and Protocol 14.

In 1998 a major step was taken to deal with the growing number of applications:

a permanent Court was set up in Strasbourg. This reform also aimed at simplifying the system, reducing the length of proceedings and making them entirely judicial. However, the prospect of a continuing increase in the workload of the Court soon led to the conclusion that a reform

of the Court was necessary if the system was to be preserved. States agreed that any reform should not affect the unique features of the system: the judicial character of the process and the right of individual application. In May 2004 the Council of Europe Committee of Ministers adopted

Protocol No. 14 to the European Convention on Human Rights and Fundamental Freedoms. Its aim is to improve the efficiency of the Court and to reduce its workload as well as that of the Committee of Ministers of the Council of Europe, which supervises the execution of the judgments. The ultimate aim is to enable the Court to concentrate on those cases that raise important human rights issues.

13 In 2009, considering that the delay in the entry into force of Protocol No. 14 required urgent provisional measures to reduce the backlog of the Court, the Council of Europe Committee of Ministers’ meeting held in Madrid adopted Protocol 14-the reform of the Protocol No. 14bis to the

European Convention on Human Rights, along with an agreement on provisional application of certain provisions of Protocol No. 14 dealing with the competences of single judges and three judge committees. Protocol No. 14 will finally enter into force on 1 June 2010, three months after its

ratification by Russia, the last state to ratify it.

What are the main changes introduced by Protocol 14?

• reinforcement of the Court´s filtering capacity to deal with clearly inadmissible applications

• a new admissibility criterion concerning cases in which the applicant has not suffered a significant disadvantage

• measures for dealing more efficiently with repetitive cases

The key amendments to the Convention are the following:

Election of judges: Judges will be elected for a non renewable term of office of nine years. In the current system judges are elected for a term of six years that may be renewed for another six. The aim of the reform is to increase their independence and impartiality. The age limit remains at 70.

Competences of single judges: A single judge will be able to reject plainly inadmissible applications, those «where a decision can be taken without further consideration». This decision will be final. Prior to the entry into force of Protocol No. 14, this requires a decision by a committee of three judges. In case of doubt as to the admissibility, the single judge will refer the application to a committee of judges or a chamber.

When acting as a single judge, a judge shall not examine any applications against the state in respect of which he or she was elected.

Competences of three judge committees: A three judge committee will be able to declare applications admissible and decide on their merits in clearly well-founded cases and those in which there is a well-established case law. Currently three judges committees can only declare applications

inadmissible by unanimity but not decide on the merits. These cases are handled by chambers of seven judges or the Grand Chamber (17 judges).

In contrast with the previous situation, even when a three judge committee decides on the merits of an application, the judges elected in respect of the state concerned by the application will not be compulsorily members of the committee. A committee may invite this judge to replace one of its

14 members, only for specific reasons, for example, when the application is related to the exhaustion of national legal remedies.

Decisions on admissibility and merits: In order to allow the registry and the judges to process cases faster, the decisions on admissibility and merits of individual applications will be taken jointly. This has already become the common practice of the Court. However the Court may always decide to take separate decisions on particular applications. This does not apply for interstate applications.

New admissibility criterion: The protocol creates an additional tool to allow the Court to concentrate on cases which raise important human rights issues. It empowers it to declare inadmissible applications where the applicant has not suffered a significant disadvantage and which, in terms of respect for human rights, do not require an examination of the merits by the Court or do not raise serious questions affecting the application or the interpretation of the Convention or important questions

concerning national law.

Commissioner for Human Rights: The Commissioner will have the right to intervene as a third party, by submitting written comments and taking part in hearings. So far, it was possible for the president of the Court to invite the Commissioner to intervene in pending cases.

Friendly settlements: In order to reduce the Court´s workload, Protocol 14 encourages friendly settlements at an early stage of the proceedings, in particular for repetitive cases. It also provides for the supervision of the execution of the decisions on these settlements by the Committee

of Ministers.

Execution of judgments: The Protocol empowers the Committee of Ministers to ask the Court to interpret a final judgment if it encounters difficulties to do it when supervising its execution. In order not to overburden the Court, if there are disagreements in the Committee with regard to the interpretation of a judgment, a decision can be taken by a qualified majority. Considering the importance of rapid execution of judgments, in particular in cases concerning structural problems, in order to prevent repetitive applications, the Protocol will allow the Committee of Ministers

to decide, in exceptional circumstances and with a 2/3 majority, to initiate proceedings of non compliance in the Grand Chamber of the Court in order to make the state concerned execute the Court´s initial judgment.

These proceedings before the Court would result in another judgment related to the lack of an effective execution.

Accession by European Union: Article 17 of the Protocol contains the possibility of the European Union becoming a party to the Convention. The Lisbon Treaty, which entered into force in December 2009, states that the European Union shall access the Convention. To provide for this accession the Convention will have to be further modified. The accession of the EU would be a major step towards.

The control mechanism of the European Convention on Human Rights

(ECHR) is considered to be “the most effective international system for the protection of individual human rights to date”.

However, the system’s success has brought with it a caseload which the European Court of Human Rights has found more and more difficult to handle. The massive influx of individual applications is leading to a rapid accumulation of pending cases before the Court, resulting in lengthy proceedings.

In the last few years, numerous reform activities within the Council of Europe have been undertaken to enable the Court to deal more efficiently with its caseload. Thus, the Committee of Ministers adopted Protocol No. 14 to the Convention at its 114th Ministerial Session in May 2004.

The member states committed themselves to ratify the Protocol as speedily as possible so as to ensure its entry into force within two years. To this date, however, Protocol No. 14 has not yet entered into force because the ratification of the Russian Federation is still pending.

The Protocol’s entry into force is certainly a very important step to guarantee the stability of the Convention system. Some of the reform measures introduced by Protocol No. 14 are essential to improve the effectiveness of the control mecha-nism and will prove successful shortly after Protocol No. 14 enters into force.

However, it is widely agreed that – even if Protocol No. 14 enters into force – additional reform measures will be needed in the foreseeable future. Consequently, the Heads of State and Government of the Council of Europe decided as early as May 2005 to establish a Group of Wise Persons (GWP).

The GWP was asked to consider “the long-term effectiveness of the ECHR control mechanism, including the initial effects of Protocol No. 14 and the other decisions taken in May 2004”.

In addition, the GWP should submit “proposals which go beyond these measures, while preserving the basic philosophy underlying the ECHR”.

After having developed an Interim Report in May 2006, the GWP submitted its Final Report to the Committee of Ministers on November 15, 2006.

After examining the main reason for further reform measures, this article addresses the premises for the new reform of the Convention system. The article then discusses the various reform proposals contained in the GWP’s Report and develops additional suggestions on its follow-up.

The GWP’s Report acknowledged that the main threat to the effectiveness of the control system is the exponential growth in the number of individual applications lodged with the Court under Article 34 of the ECHR. The massive increase in the number of individual applications is “seriously threatening the survival of the machinery for the judicial protection of human rights and the Court’s ability to cope with its workload”.

Despite the Court’s enhanced productivity in processing applications, there were 89,887 applications pending before the Court by the end of 2006.

The GWP were of the opinion that the reforms contained in Protocol No. 14 will be “extremely useful”.

However, according to estimates prepared by the Court, the increase in productivity resulting from the implementation of Protocol No. 14 might be between 20 and 25 %.

Given the enormous caseload of the Court, this increase in productivity will not suffice to guarantee the Court’s longterm effectiveness as can be illustrated by the following figures. The latest activity report of the Court estimates that 50,500 new applications were lodged with the Court in 2006. In the same year, the Court disposed of 28,160 cases, either by rendering a final judgment, declaring them inadmissible or striking them from the

Court’s list of cases.

Assuming hypothetically that the amount of individual applications filed with the Court does not continue to rise in the future and that Protocol No. 14 results in a productivity increase of 25 %, the number of new applications still exceeds the number of cases disposed of by the Court by about 15,300 applications. As a consequence, the number of cases pending before the Court would still continue to grow. The rapid accumulation of pending cases before the Court results in lengthy proceedings, frustrating the aim of the Convention system to deliver justice in a timely manner. It is therefore of vital importance that additional reform measures beyond Protocol No. 14 are examined.

Protocol 11

Protocols 2, 3, 5, 8, 9 and 10 have now been superseded by Protocol 11 which entered into force on 1 November 1998.^[33] It established a fundamental change in the machinery of the convention. It abolished the Commission, allowing individuals to apply directly to the Court, which was given compulsory jurisdiction and altered the latter's structure. Previously states could ratify the Convention without accepting the jurisdiction of the Court of Human Rights. The protocol also abolished the judicial functions of the Committee of Ministers.

Protocol 14

Protocol 14 follows on from Protocol 11 in proposing to further improving the efficiency of the Court. It seeks to "filter" out cases that have less chance of succeeding along with those that are broadly similar to cases brought previously against the same member state. Furthermore a case will not be considered admissible where an applicant has not suffered a "significant disadvantage". This latter ground can only be used when an examination of the application on the merits is not considered necessary and where the subject-matter of the application had already been considered by a national court.

A new mechanism was introduced by Protocol 14 to assist enforcement of judgements by the Committee of Ministers. The Committee can ask the Court for an interpretation of a judgement and can even bring a member state before the Court for non-compliance of a previous judgement against that state. Protocol 14 also allows for European Union accession to the Convention. The protocol has been ratified by every Council of Europe member state, Russia being last in February 2010. It entered into force on 1 June 2010.^[34]

A provisional Protocol 14bis had been opened for signature in 2009.^[35] Pending the ratification of Protocol 14 itself, 14bis was devised to allow the Court to implement revised procedures in respect of the states which have ratified it. It allowed single judges to reject manifestly inadmissible applications made against the states who have ratified the protocol. It also extended the competence of three-judge chambers to declare applications made against those states admissible and to decide on their merits where there already is a well-established case law of the Court. Now that all Council of Europe member states have ratified Protocol 14, Protocol 14bis has lost its raison d'être and according to its own terms ceased to have any effect when Protocol 14 entered into force on 1 June 2010