Of Foxes Guarding Chickens, and Their Fellow Foxes
An Outlook on the Reform Process Concerning Inter-State Applications Under the ECHR
Ever since the adoption of the European Convention on Human Rights (ECHR), the system of inter-State applications has constituted an inherent and indeed important part of its enforcement mechanism, as was confirmed by Ed Bates in his overview of the genesis of the mechanism. Yet, given the currently high, and it seems ever-increasing, number of such applications, one wonders about its future.
In this brief concluding contribution, we do not intend to revisit all contributions or duplicate the arguments made as part of this Symposium. Rather, we limit ourselves to highlight some pertinent issues and conclude with an overview of which issues the currently ongoing review process should (further) discuss and eventually decide.
Character of inter-State proceedings brought under the ECHR
Traditionally, a distinction is drawn between purportedly altruistic inter-State applications on the one hand and seemingly self-interest driven litigation on the other. Yet, while each and every such application, regardless of its altruistic or self-centered character, also constitutes an inherently political step, we believe that the European Court of Human Rights (ECtHR) was right when stating in December 2020 that “the political nature of any motives which might have inspired the applicant Government to submit the application and the political implications that the Court’s ruling might have are of no relevance in the establishment of its jurisdiction to adjudicate the legal issues submitted before it” (Ukraine v. Russia (re Crimea), para. 273)
At the same time, it seems that the ever-increasing number of inter-State proceedings brought before the ECtHR could be seen as an indication of a decreasing degree of homogeneity among the Member States of the ECHR, as well as a sign of an increased level of tensions within what the Court refers to as the common espace juridique européen.
Time is of the essence
As was rightly pointed out by former ECtHR judge and vice-president of the Court Angelika Nußberger, it is essential that the Court is enabled to deal with inter-State cases within a reasonable time frame. Adequate financial resources of the Court are thus fundamental for it to perform its tasks in a timely manner. At the same time, it is worth noting that other international courts, notably the ICJ, when dealing with complex cases of a similar nature as some of the inter-State applications currently pending before the ECtHR, take quite some time before a final judgment on the merits is eventually rendered. In deciding on the appropriateness of a timeframe of inter-State proceedings, one has to also take into consideration the essential need to establish the relevant facts. While Alina Miron provided a telling comparative perspective on the way fact-finding is undertaken before the International Court of Justice and the International Tribunal on the Law of the Sea, Thilo Marauhn and Philip Leach offered two different perspectives on this difficult and complex task, notably when deciding applications dealing with an ongoing armed conflict.
It is against this background that the issue of interim measures is of utmost relevance, as addressed by Peter Tzeng. He is of the opinion that no judicial institution so far has fully mastered the procedure of interim measures in inter-State proceedings. In view of the comparatively long time other judicial institutions take to react to certain situations by adopting interim measures it is worthwhile to reflect on the Court’s ability to react speedily, and on what short notice the Court has made use of its certainly limited possibilities. Yet, its task is obviously facilitated by the fact that the Member States of the ECHR have unequivocally consented to the jurisdiction of the Court, which thus normally absolves the Court of the necessity to make any finding as to its (prima facie) jurisdiction.
Addressing the interaction between overlapping individual and inter-State applications
For reasons rooted in the original design of the Convention, the relationship of inter-State applications and overlapping individual proceedings is not formally regulated. However, they both have an important function and do not exclude each other, as the Court has rightly underlined in Varnava, and as was analyzed in detail by Hélène Tigroudja. At the same time such parallel proceedings do create novel challenges for the Court, and call for flexible and creative solutions that take into account the perspective of individual applicants. In the case of overlap, it might be helpful to prioritize the inter-State procedure, and address in this inter-State judgment only the overarching issues. Such judgment could then serve as a certain form of emulation of a pilot judgment. On that basis, the Court would then decide the related individual cases on the basis of the legal findings previously made in the inter-State case.
Often, inter-State applications deal with alleged administrative practices. The existence of such administrative practices, once confirmed, dispenses from the requirement to exhaust domestic remedies under Article 35 (1) ECHR. At the admissibility stage, the required standard of proof for the existence of an alleged administrative practice is prima facie only. One might therefore consider whether a large number of individual applications, all related to similar facts, might not serve as an indication that such an administrative practice exists, which would then, in fruitful interaction of the two types of proceedings, reverse the burden of proof as to the existence of such practice.
Challenges ahead: a roadmap
Some of the many challenges the Court is currently facing in inter-State proceedings have been addressed as part of this Symposium. The forthcoming Council of Europe publication, containing the proceedings of the conference, will provide a more complete picture as to the ongoing debate both within the Council of Europe itself, but also within academic circles. However, beyond that debate, we believe that some other questions might also warrant further attention.
For one, we think that inter-State applications should not be excluded between member States of the European Union (EU) once the EU itself accedes to the ECHR. This is because, as the situation in some EU member States suggests, EU membership does not provide a full safety net protecting against systemic violations of the ECHR.
The Court also needs to develop convincing strategies on how to deal with legal issues arising from the applicability of other parallel legal regimes in a given situation that is subject to inter-State proceedings. This applies in particular to the question on how to reconcile the ECHR with international humanitarian law. Further, it will have to address more often the question of how to cope with parallel proceedings in other international fora.
At the level of just satisfaction under Article 41 ECHR, the Court needs to reconcile the idea of collective enforcement of human rights on the one hand, and the quest for individual justice on the other. How to serve both will continue to be subject of different opinions. It might therefore be worthwhile to distinguish the Court’s mandate to establish general violations in inter-State case from providing remedies in individual cases. In the situation of an overlap of such proceedings, the inter-State application may serve as a sort of pilot judgment establishing the framework for pending related individual cases, also with regard to just satisfaction. Alternatively, one could also consider whether the Court, in its judgment on an inter-State-application, could not at the same time decide on the compensation to be granted to all victims of the underlying systemic violations of the Convention that it considers to have occurred, regardless of whether the individuals concerned have simultaneously filed individual applications or not.
As was elaborated by Helen Keller and Réka Piskóty, as well as Nicola Wenzel and Laurence Burgorgue-Larsen, there might also be the potential of enlarging the remedial toolbox of the Court in the context of friendly settlements.
Finally, in recent times, one may discern the practice of “counter-inter-State applications”. It will thus be necessary to consider how the Court ought to deal with this new phenomenon, both procedurally and substantively, and whether it would not be advisable to provide for the possibility of bringing ECHR-based counterclaims, a possibility which is so far not foreseen neither in the Convention as such, nor in the Rules of Court.
Overall, one cannot but conclude by paraphrasing and adapting the famous dilemma spelled out by Ernst-Wolfgang Böckenförde that the European Court of Human Rights operates by prerequisites which it cannot guarantee itself. In the absence of, or, in an evolving process of erosion of, a rule-based framework respected and internalized by all, or at least the overwhelming majority of the member States of the Council of Europe, expectations towards the Court, which depends on the support by the member States of the Council of Europe, should thus be managed carefully.
Or to put it differently, borrowing from Bruno Simma’s figurative expression: the very same foxes that guard the chickens are also called upon to keep an eye on the other foxes. This is what the inter-State application under the ECHR is all about, and this is also a central aim of the parent organization, the Council of Europe, as evidenced in Article 3 of its Statute. Indeed, it is first and foremost the responsibility of the member States of the Council of Europe, as the ‘foxes’ called upon to keep an eye on their ‘fellow foxes’, to collectively guarantee the rights contained in the Convention.
At this point, we wish to thank Justine Batura, Raffaela Kunz and the whole Völkerrechtsblog-team, who supported this Symposium with enthusiasm, advice nurtured by experience, and good ideas on all levels.