Member states’ duty to co-operate with the European Court of Human Rights
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly debate
on 2 October 2007 (31st Sitting) (see Doc. 11183, report of the Committee
on Legal Affairs and Human Rights, rapporteur: Mr Pourgourides).
Text adopted by the Assembly on 2 October 2007 (31st Sitting).
- Thesaurus
1. The Parliamentary Assembly stresses
the importance of the European Court of Human Rights (hereinafter
“the Court”) for the implementation of the European Convention on
Human Rights (ETS No. 5) (hereinafter “the Convention”) in all member
states of the Council of Europe. The right of individuals to apply to
the Court is a central element of the human rights protection mechanism
in Europe and must be protected from interference at all levels.
2. The Court requires the co-operation of all states parties
at all stages of procedure and even before a procedure is formally
opened. In view of the subsidiary nature of the Court’s intervention,
and its lack of investigatory resources in the countries concerned,
national authorities have a positive obligation to co-operate with
the Court as regards the establishment of facts.
3. The Assembly is satisfied that, in general, states co-operate
well with the Court. It commends the national representatives before
the Court for their important contribution to maintaining constructive
working relations between the competent national authorities and
the Court.
4. As most states co-operate smoothly with the Court, it is especially
important, as a matter of equal treatment for all member states,
to take appropriate steps towards resolving outstanding problems.
The Assembly therefore thanks the Committee of Ministers for having
taken up this issue in its Resolution ResDH(2006)45 on states’ obligation
to co-operate with the European Court of Human Rights, adopted on
4 July 2006.
5. As all states parties to the Convention have undertaken not
to hinder in any way the effective exercise of the right of individual
applications (Article 34 of the Convention), the Assembly is deeply
worried about the fact that a number of cases involving the alleged
murder, disappearance, beating or threatening of applicants initiating
cases before the Court have still not been fully and effectively
investigated by the competent authorities. On the contrary, in a
significant number of cases there are clear signs of a lack of willingness
to effectively investigate the allegations and in some cases the
intention of whitewashing is clearly apparent.
6. Illicit pressure has also been brought to bear on lawyers
who defend applicants before the Court and who assist victims of
human rights violations in exhausting domestic remedies before applying
to the Court. Such pressure has included trumped-up criminal charges,
discriminatory tax inspections and threats of prosecution for “abuse
of office”. Similar pressure has been brought to bear on NGOs who
assist applicants in preparing their cases.
7. Such acts of intimidation have prevented alleged victims of
violations from bringing their applications to the Court, or led
them to withdraw their applications. They concern mostly, but not
exclusively, applicants from the North Caucasus region of the Russian
Federation. Cases of intimidation concerning other regions of the Russian
Federation, as well as from Moldova, Azerbaijan, and – albeit less
recently – Turkey have also been brought to the attention of the
Parliamentary Assembly.
8. In a significant number of cases, the competent authorities
of several countries have failed to co-operate with the Court in
its investigation of the facts. This lack of co-operation includes
the persistent non-disclosure of the case file or other relevant
documents and even the refusal to allow a planned fact-finding visit
of the Court to proceed.
9. The Assembly notes that the Court has developed a number of
instruments to counteract lack of co-operation by states parties,
both regarding interferences with the right of individual application
and lack of co-operation in the establishment of facts. In particular,
Rule 44 of the Rules of the Court, adopted in 2004, clarifies and
strengthens the Court's position as regards failure to co-operate..
10. The Assembly encourages the Court to continue taking an assertive
stand in counteracting pressure on applicants and their lawyers
as well as on lawyers working on the exhaustion of domestic remedies.
11. The Court has allowed exceptions to the requirement of exhausting
domestic remedies in cases where such remedies are either ineffectual
or impractical. The Assembly believes that the requirement of exhausting domestic
remedies ought to be applied with considerable flexibility in the
cases of applicants who are subjected to intimidation or other illicit
pressure in order to prevent them from pressing charges against
the perpetrators before the local courts or from exhausting all
domestic remedies.
12. In certain cases the Court has also given priority to cases
involving applicants subjected to undue pressure. In view of experience
showing that the period between the registration of an application
with the Court and its communication to the authorities of the respondent
state may be particularly dangerous for applicants in terms of the
exercise of pressure, the Assembly encourages the Court to do its
utmost to shorten this period. Granting priority treatment to such
cases may provide a disincentive for those tempted to apply undue
pressure.
13. The Court has also used the instrument of interim measures
(Article 39 of the Rules of the Court) in order to prevent irreparable
damage. The Assembly commends the Court for finding that such interim
measures are binding on states parties. It considers that this instrument
may have still wider potential uses for protecting applicants and
their lawyers who are exposed to undue pressure. The Court may find
it useful in this respect to examine the practice of the Inter-American
Court of Human Rights and the Inter-American Commission on Human
Rights, which have used interim measures to enjoin the authorities
to place applicants under special police protection in order to
shield them from criminal acts by certain non-state actors.
14. As regards national authorities’ co-operation in the establishment
of facts, the Court has extended – on a case-by-case basis – the
notion of “necessary facilities” that member states must put at
the disposal of the Court for the effective conduct of investigations
(Article 38, paragraph 1.a, of the Convention), to include submitting
documentary evidence to the Court, as well as identifying, locating
and ensuring the attendance of witnesses at hearings, and making
comments on and replying to questions asked by the Court.
15. Finally, in appropriate cases in which the applicant has succeeded
in making a prima facie case, the Court has made inferences from
a respondent state's refusal to co-operate in the establishment
of facts, including presumptions of fact or the reversal of the
burden of proof.
16. The Assembly commends the Court for its assertiveness in developing
case law concerning member states’ duty to co-operate in the establishment
of facts. In view of further harmonising the application of this case
law, it encourages the Court to consider laying down key principles
in its Rules of Procedure, similar to the Inter-American Court of
Human Rights and the Inter-American Commission on Human Rights.
17. The Assembly therefore calls upon the competent authorities
of all member states to:
17.1 refrain
from putting pressure on applicants, potential applicants, their
lawyers or family members, aimed at obliging them to refrain from
submitting applications to the Court or withdrawing those applications
which have already been submitted;
17.2 take positive measures to protect applicants, their lawyers
or family members from reprisals by individuals or groups including,
where appropriate, allowing applicants to participate in witness protection
programmes, providing them with special police protection or granting
threatened individuals and their families temporary protection or
political asylum in an unbureaucratic manner;
17.3 thoroughly investigate all cases of alleged crimes against
applicants, their lawyers or family members and to take robust action
to prosecute and punish the perpetrators and instigators of such
acts so as to send out a clear message that such action will not
be tolerated by the authorities;
17.4 assist the Court in fact-finding by putting at its disposal
all relevant documents, including the complete case file concerning
criminal or other proceedings before the national courts or other
bodies, and by identifying witnesses and ensuring their presence
at hearings organised by the Court;
17.5 sign and ratify, if they have not already done so, the
European Agreement relating to persons participating in proceedings
of the European Court of Human Rights (ETS No. 161);
17.6 in all cases where applicants have duly appointed legal
representatives, channel all communications with applicants related
to the case before the Court, including offers of friendly settlements,
through their representatives.
18. The Assembly is of the view that member states’ co-operation
with the European Court of Human Rights would benefit if the Court
were to
18.1 taking appropriate
interim measures, including new types thereof, such as ordering
police protection or relocation of threatened individuals and their
families;
18.2 urgently notifying applications to respondent states in
cases where the Court is informed of credible allegations of undue
pressure on applicants, lawyers or family members;
18.3 granting priority to such cases;
18.4 taking up cases of alleged unlawful pressure on applicants
and lawyers with the representatives of the state concerned and,
as appropriate, alerting the Committee of Ministers to any persistent problems;
18.5 wherever possible continuing to process applications that
have been withdrawn in dubious circumstances;
18.6 applying with considerable flexibility, or even waiving,
the requirement of exhaustion of domestic remedies for applicants
from the North Caucasus region (Chechen and Ingush Republics, Dagestan, North
Ossetia) until substantial progress has been made in establishing
the rule of law in this region;
18.7 making use of presumptions of fact and reversing the burden
of proof in appropriate cases, including in cases in which there
is prima facie evidence of undue pressure having been exercised
on applicants or their lawyers.
19. The Assembly invites the Council of Europe Commissioner for
Human Rights to monitor the observance of states’ duty to co-operate
with the Court.
20. It also invites national parliaments to include all aspects
of states’ duty to co-operate with the Court in their work aimed
at supervising the compliance of governments with obligations under
the Convention, and to hold the executive or other authorities accountable
for any violations.
