C Explanatory
memorandum by Mr Michel, rapporteur
1 Introduction
1.1 Procedure
1. The motion for a recommendation entitled “The European
Convention on Human Rights: reinforcement and consolidation of the
training of judges, law enforcement officials and lawyers” (
Doc. 12843) was referred to the Committee on Legal Affairs and
Human Rights on 13 March 2012. The committee appointed me rapporteur
on 24 April 2012.
2. On 25 June 2013, the committee declassified an introductory
memorandum and forwarded it to various organisations and experts
for comment.
Note On
4 September 2013, the committee organised a hearing of four experts:
- Ms Christiane Schmaltz, training
specialist on the European Convention on Human Rights, former ad hoc
Judge at the European Court of Human Rights, Judge at the Schleswig-Holstein
Court of Appeal, Kiel, Germany;
- Ms Galina Arapova, training specialist on the European
Convention on Human Rights, Director of the NGO Mass Media Defence
Centre, Russian Federation;
- Ms Ivana Roagna, Lawyer, training specialist on the European
Convention on Human Rights, Italy;
- Mr Laurent Pettiti, Lawyer, Chairperson of the Committee
on relations between the Council of Bars and Law Societies of Europe
and the European Court of Human Rights, France.
1.2 The issues arising
in the area of training for law professionals
3. The aforementioned motion for a recommendation notes
that the European Court of Human Rights (“the Court”) had proposed
to develop its own training programme for law professionals and
concludes that “this is not a matter that should, as such, be undertaken
by a judicial organ, in particular one that is struggling to keep up
with its heavy caseload”. The motion furthermore points out that
“training should be undertaken primarily at the level of the Organisation’s
intergovernmental sector in partnership, where appropriate, with
others”. I agree with the authors of the motion that law professionals
should not be trained by the Court itself. We should therefore consider
in what framework such training is to be provided: is the Council
of Europe to be entrusted a key role in this area or should the
Organisation content itself with acting simply as a co-ordinator
or a clearing house for training activities for which the responsibility
should be left to national bodies? I will therefore seek to answer
this question with a view to suggesting the best solutions for law
professional training that is more structured but nevertheless respects
the characteristics of each country and more generally of their
respective legal systems, necessitating different priorities.
4. Ideally, better training for law professionals will ultimately
result in reinforced application of the Court's case law by courts
in the member States as well as a reduction in the number of applications
to the Court. Cutting the number of applications to the Court is
vitally important. At several intergovernmental conferences held
in recent years and in the resulting declarations (Interlaken,
Note Izmir
Note and Brighton
Note), the member States told the Court
that it would not be given more resources but would have to use
the procedural tools available to it (restrictive admissibility
criteria, pilot-judgment procedure,
Note etc.)
to manage the applications received and to be ruled on.
2 Context
2.1 The authority of
the Court's case law
5. The case law of the Court – particularly the Grand
Chamber's judgments of principle – provides an authoritative interpretation
of the European Convention on Human Rights (ETS No. 5, “the Convention”)
by which all the Council of Europe's member States are bound. The
Court's judgments, which have binding force under Article 46 of
the Convention, constitute European supervision of the Convention's
application which is incumbent firstly on national bodies.
6. While, in principle, the binding force of the Court's judgments
applies only between the parties to the dispute, it is highly desirable
that other States – their respective legislature, executive and
courts – draw inspiration from judgments relating to similar problems
elsewhere. Fortunately, more and more examples point to the fact
that supreme judicial bodies, and also legislative and executive
authorities, are taking account of the interpretative authority
(
res interpretata) of the
judgments of the Court.
Note An expansion of this “good practice” would
obviate a great many applications, but at the same time would require
strong knowledge of the Court's case law within the decision-making
bodies of each State Party.
2.2 Access to the Court's
case law
7. The issue of the translation, publication and dissemination
of the Court’s case law is also of primary importance when discussing
the training of law professionals. Of interest to note, in this
context, is that the Court’s case law is available via the Court
website’s
HUDOC database, presented in more detail below. It is also
published in a wide variety of outside publications, in many languages,
ranging from ministerial bulletins and other official State publications,
documents issued by NGOs and a host of academic and commercial sources,
to a growing series of websites and blogs of variable quality.
Note But this is not, in most
instances, carried out in any systematic or comprehensive manner.
And although the use of only two official languages, English and
French, can facilitate work in Strasbourg, for those who possess
a good knowledge of only one of these languages, reception of the
Court’s case law is far from satisfactory at the domestic level,
because although Grand Chamber judgments are rendered in both English
and French, chamber judgments are often only issued in either English
or French. National judicial and administrative institutions, practising
lawyers, academics and the public at large should all be able to
have (better) access to the most important Court case law in their
respective languages.
Note Needless
to add, if a State is required to translate a Court judgment as
part of the “general measures” foreseen in the context of the execution
of a Court judgment, by virtue of Article 46.2 of the Convention,
it is the respondent State itself which must bear the cost of translation
and ensure appropriate dissemination of the text. The crucially
important question of translating the Court's case law is examined
in greater detail below.
3 Issues that merit
consideration
3.1 Why human rights
training for law professionals is necessary
8. The training of law professionals is of paramount
importance to ensure that Convention standards are firmly entrenched
in the national law of member States. The perceived means of achieving
this is often standardised training of judges, prosecutors and lawyers
on the Convention's standards, as interpreted by the Court, taking
into account the specific needs of each State. Often, a lack of
appropriate training of the aforementioned law professionals leaves
States ill-equipped and unable to correctly apply and integrate Convention
standards. Proper implementation of the Convention at national level
is essential to reducing the amount of applications brought before
the Court, as well as the backlog of cases currently facing it,
Note not to mention the need to improve
the speed and efficiency of justice within States.
9. That said, most of the experts and institutions we consulted
agree that the training of law professionals is primarily the responsibility
of the member States and must be provided by qualified law specialists
within the legal system of the member State concerned who are also
well versed in the Convention as interpreted by the Court. Training
must be adapted to the legal system of each State and be incorporated
in the vocational training systems operating in each country and
for each legal profession (judges, prosecutors, lawyers). International experts
may be used but only when they are familiar with the national legal
system. However, the competent national institutions must themselves
develop the necessary tools in order to provide such training, where applicable
in co-operation with the Council of Europe’s
HELP programme.
Note Below
I will examine how this kind of training, in principle an internal
exercise, can benefit from co-operation with the HELP programme.
3.1.1 What the Council
of Europe has said regarding human rights training for law professionals
10. On 12 May 2004, the Committee of Ministers adopted
Recommendation Rec(2004)4 to member States on the European Convention
on Human Rights in university education and professional training
Note which, while recognising the importance
of publishing and disseminating the text of the Convention and the
Court’s case law at national level, states that “it is crucial that
these measures are supplemented by others in the field of education
and training, in order to achieve their aim”. The recommendation
reiterated the need to ensure adequate education on the Convention
to law enforcement professionals, which would contribute to reducing, on
the one hand, the number of violations resulting from insufficient
knowledge of the Convention and, on the other hand, the lodging
of applications which manifestly do not meet the admissibility requirements.
Note More specifically,
professional training would facilitate better incorporation of Convention
standards and the Court’s case law in the reasoning adopted by domestic
courts in their judgments; legal advice given to potential applicants
by lawyers having adequate knowledge of the Convention would prevent
applications that manifestly do not meet the admissibility requirements.
A better knowledge of the Convention by law professionals would
therefore contribute to reducing the number of applications reaching
the Court.
Note
11. As far as the updating of Recommendation Rec(2004)4 is concerned,
the Committee of Experts on the Reform of the Court (DH-GDR) has
expressed its interest and the Steering Committee for Human Rights (CDDH)
has expressed its willingness to carry out this work were it requested
by the Committee of Ministers. However, it is regrettable that the
CDDH considers that such work should not take priority over other activities.
Note
12. In the Brighton Declaration of April 2012, the member States
expressed their determination to ensure effective implementation
of the European Convention on Human Rights at the national level
by “providing appropriate information and training about the Convention
in the study, training and professional development of judges, lawyers
and prosecutors” (paragraph 9.vi).
Note
4 Training for law
professionals provided at national level
4.1 A few general remarks
13. In implementing Recommendation Rec(2004)4, member
States provided the Committee of Ministers with information on the
type of training offered to judges, lawyers, prosecutors and law-enforcement
officials between 2001 and 2005.
Note This training varied
from country to country and within the same State, but some trends
were noted. Since the adoption of this recommendation, the majority
of member States now appear to have permanent training structures
for judges and prosecutors. Some of the remaining challenges concern
the absence of mandatory continuous training for lawyers. New methods
in adult learning have also been developed, in particular based
on the principle of open education that enables law professionals
to learn what they think useful is useful to them. It also gives
them a sense of responsibility for their education, which is facilitated
through access to self-learning tools.
14. Most States also indicated that training on the Convention
was provided by universities (at bachelor and/or master level) as
part of courses on human rights, public international law, constitutional
law, criminal law, etc. Some States also indicated that judicial
and lawyers’ training institutions provided some basic and further training
on the Convention and the Court’s case law to judges, lawyers and
prosecutors, but this was not done in a uniform manner. What was
striking in the information provided was that the Convention and
the Court’s case law rarely existed as a course in its own right
and, more often than not, were provided within a wider context.
Here, what is important to underline, is the fact that the case
law is often not studied in any depth, even in courses relating
to specific areas of law for which it is most relevant (constitutional
law, civil and criminal procedure, family law, etc.).
15. One of our experts, Ms Roagna, who has a long experience as
a Council of Europe trainer, said that in the “new” member States
the training provided by the Council of Europe gave many law professionals
their first insight into the Convention's standards. Ms Roagna added
that in many European countries, the teaching of law at university
level dispensed only very limited knowledge of the Convention, often
in the form of options. Similarly, the vocational training for law
professionals in most countries devotes only scant attention to
the Convention. Ms Roagna noted that even seasoned professionals
have only very limited knowledge and understanding of the Convention.
4.2 Examples of training
on the Convention at national level
16. I would also like to look at a few examples of training
provided at national level in two of the “old” member States (Germany
and France) and two “new” States, namely Russia – the country which
has the highest number of applications against it before the Court
Note – and Poland, to illustrate the
type of training received by law professionals at national level.
These examples show that training on the Convention and the Court's
case law varies in the different member States and is generally
inadequate.
4.2.1 Germany
17. One of our experts, Ms Schmaltz, said that the human
rights training dispensed at universities in Germany should be more
developed. As things stand, compulsory university classes do not
include any module specially devoted to the Convention or the Court’s
case law. They do include “links to European law” pursuant to the
law on the judiciary, but a look at the laws of the Länder (the federal States) which
determine the subjects examined shows that, in this context, “European
law” tends to cover above all the law of the European Union. After
university and the first State examination, all future law professionals
must undergo practical training (“Referendariat”) lasting two to
three years. But the Convention has only a diminutive role in the
training, and only for those candidates who choose European or international
law as their “selected subject group” in the second State examination
validating practical training, in addition to the range of compulsory
basic subjects which, in any case, constitute the vast majority
of subjects examined. After the second State examination, which
is compulsory for all future professionals, only lawyers are obliged
to undergo further training, which is not therefore the case for
judges and prosecutors. There is nevertheless a supra-regional training
institution for judges and prosecutors offering further training
courses on a voluntary basis.
4.2.2 France
18. Another of our experts, Mr Pettiti, told us that
human rights training has been provided to lawyers in France since
1978. Certain universities have training programmes in which the
Convention is taught. However, he believes that the quality of the
training provided to French lawyers lacks consistency. The Paris
College for barristers incorporated a human rights training programme,
which was then dropped for several years, but there is now a new
programme, introduced two years ago, which trains 1 700 lawyers
each year in Paris with the aid of the HELP programme
Note and the Court’s registry.
This course – compulsory for trainee lawyers – comprises two modules
on the Convention and the Court's case law as well as the Court's
structure and functioning. For practising lawyers, the
Délégation des Barreaux de France (Delegation
of the French bar association) organises courses on the Convention.
Several training sessions are organised annually and each training
session is attended by between 80 and 150 lawyers from all over
France. However, Mr Pettiti said that the training provided to French
lawyers on the Convention is not as substantial as the training
they receive on European Union law.
19. Numerous training courses on the Convention and the Court's
case law are available to members of the French judiciary. Where
basic training is concerned, members of the Court visit the
Ecole nationale de la magistrature (national
college for the judiciary)
Note in Bordeaux and provide both theoretical
and practical training (with workshops) lasting several days. For
further training, there are several specialised training courses including
a week-long course entitled “La CEDH: mode d’emploi” (“The ECHR:
instructions for use”) which provides theoretical tools enabling
judges to apply the Convention. It is attended by several dozen
judges every year and reinforced by group training sessions organised
annually at the Council of Europe and the Court.
4.2.3 Poland
20. Since 2012, a day-long basic training course in human
rights has been taught to mixed groups of 50 judges and prosecutors.
The Ministry of Justice is tasked with making regular proposals
to the national college for judges and prosecutors for courses focusing
on the Court's most recent case law, particularly that regarding Poland.
Thanks to co-operation between the national college for judges and
prosecutors and the HELP programme, each judge or prosecutor receiving
this training is provided with manuals on the right to a fair trial, and
the right to respect for private and family life and freedom of
thought, conscience and religion as part of the European Convention
on Human Rights. In addition to this basic training, it is foreseen
to provide judges with more in-depth training to give them a good
knowledge of the Convention and the Court's case law. The idea is
for every Polish court to have two judges with an in-depth knowledge
of European law (European Union law and the Court's case law) which
they can then pass on to their colleagues.
4.2.4 Russia
21. Another expert, Ms Arapova, said that, in Russia,
very few judges and prosecutors are capable of reading and working
with legal texts in a foreign language, in this case English and
French. Moreover, not all of them use the Internet (all courts have
access in principle, but the judges' computers have no network connection),
which limits opportunities for using online resources such as HUDOC
and the material made available by the HELP programme. Owing to
the size of the country and the resultant number of law professionals
to be trained, considerable resources are required to have a real
impact. Russia does not have a national training college for prosecutors.
There is a Russian Academy of Justice, an institution providing training
for lawyers and further training for judges but, given that very
few Russian judges apply the Convention and the Court's case law
in the cases they examine, it would appear that the training provided
to judges by the academy is not adequate where the Convention is
concerned. There have been a few local initiatives where regional
courts have organised their own seminars for judges, their assistants
and lay magistrates. Universities, NGO experts and lawyers are invited
to provide training at these seminars, covering a range of issues
raised by the Court's case law.
22. As for lawyers, there is also a lack of full, standardised
basic training as regards the Convention. There are over 1 200 law
colleges and universities providing basic professional training.
Very few universities offer courses on human rights and the Convention,
and most of those are in Moscow. In the majority of universities, law
students receive a few short classes on the Convention and the functioning
of the Court as part of an international law course. The expert
believes that this is not enough for them to fully understand the
role of the Convention and the Court's case law in the national
legal system. Furthermore, they do not learn how to apply the Convention
in practice or to read the Court's judgments or to understand the
admissibility criteria. Very little information on these questions
features in the other courses (such as civil law, family law or
criminal law). It would be desirable, in the longer term, for the
Convention's principles to be included in all fields of law studies, and
in criminal law and criminal procedure as a priority.
5 The most relevant
training provided within the Council of Europe
5.1 Training provided
by the European Court of Human Rights
23. The Court receives delegations of judges, prosecutors
and lawyers from Council of Europe member States on a regular basis.
It runs training sessions comprising programmes lasting between
one and four days, including at least three presentations by speakers
from the Court and other sectors of the Council of Europe. The training
sessions are organised at the initiative of partners in the member
States, such as supreme courts and justice ministries as well as
the permanent representations of Council of Europe member States.
In order to provide the most comprehensive training possible on
the Convention, the modules include attending a hearing, meeting
the judge elected in respect of the participants' member State,
information on the Court's database system and presentations on
the Convention's main provisions as well as the main trends in case law.
In 2012, the Court ran 47 training sessions along these lines for
delegations from 21 States. The Court also organised 463 information
visits for law professionals and students.
24. In 2012, with the support of the Human Rights Trust Fund,
Note the Court registry set up a Training
Unit with the aim of providing law professionals with training on
the Court's case law and promoting its dissemination. The unit is
currently training law professionals from Albania, Armenia, Azerbaijan,
Georgia, the Republic of Moldova, Montenegro, Serbia and Ukraine.
The trainers working in the unit are selected from among the Court's
judges, the registry's lawyers and retired judges. Two-day training
visits to the Court include attendance at a hearing and a presentation
of the Convention's main provisions. Training sessions were run with
Albanian, Armenian, Azerbaijani and Serbian participants in 2012,
and with Georgian, Moldovan, Montenegrin and Ukrainian participants
in 2013.
25. The Court has also forged a partnership with the European
Judicial Training Network (EJTN),
Note an organisation which develops training
standards and curricula, co-ordinates judicial training exchanges
and programmes and fosters co-operation between national training
bodies in the European Union. The EJTN provides year-long training
and short, four-day study visits to the Court for judges and prosecutors.
The year-long training is intended to build on the training received
at different levels. During their training, the judges and prosecutors
are assigned to the Court registry with the main task of analysing
and preparing applications relating to their jurisdiction. They
assist lawyers in preparing more complex cases brought before the
Grand Chamber. They participate in court hearings and may present
applications. They also take part in research projects. In 2010,
the EJTN began proposing study visits to the Court for judges and
prosecutors to help them expand their knowledge of its workings
and case law by participating in theoretical sessions and practical activities.
Since 2007, 22 judges and prosecutors from eight European Union
member States (Austria, Estonia, Germany, Hungary, Italy, the Netherlands,
Poland and the United Kingdom) have spent a year training at the Court.
In addition, since 2010, 291 judges and prosecutors from 22 European
Union countries have taken part in a four-day study visit.
26. Also noteworthy are two programmes serving to both help the
Court make up for its chronic lack of staff and train “national” professionals:
the first is the “junior lawyers” programme for young lawyers who
have just come through their national training system and are employed
as lawyers in the Court registry for a set period (up to four years).
The second is the programme of “secondments” of law specialists
from certain member States for a limited period; these law specialists,
many of them judges or prosecutors, work in the Court registry and
have their wages paid by their country of origin. The beneficiaries
of these two programmes gain in-depth knowledge of the Court's working
methods and case law, which they can then use once back in their
own country.
Note
27. Besides questions of training as such, there is the related
issue of access to the Court's case law for law professionals in
a language which they understand. In particular, there is an urgent
need to improve this access in Council of Europe member States where
the Court's two official languages (English and French) are not understood
by law professionals. This aim is also in line with the Brighton
Declaration (Articles 9.
c.ii,
d,
e and
h) and the previous declarations
of Interlaken and Izmir. The Court has taken steps to improve access
to its case law. The
HUDOC database was improved in June 2012 to make it more accessible.
Furthermore, on 9 September 2013, the Court issued new printed and
electronic versions of the reports of its main judgments and decisions
selected for their case law interest. However, they will be published
in English and French only.
28. The Court also makes efforts to translate its case law. To
date, 5 000 texts have been translated into 25 languages other than
English and French and may be found in the HUDOC database. In 2012,
the registry commissioned a large number of translations into Russian
and, during 2013, it has had its texts translated into Bulgarian,
Greek, Hungarian and Spanish. Governments, legal training centres,
associations of law professionals, NGOs and other interested parties
are invited to supply any translation of case law for which they
hold copyright for inclusion in HUDOC database. In addition, in
April 2012, the registry started up a three-year project with the
support of the Human Rights Trust Fund, aimed at having key Court
judgments translated and having them distributed to law professionals
in Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia,
the Republic of Moldova, Montenegro, Serbia, “the former Yugoslav
Republic of Macedonia”, Turkey and Ukraine.
29. The Court has therefore made a considerable effort to translate
its case law into languages other than English and French, but much
remains to be done. In the meantime, the fact is that many law professionals
do not know enough English or French to be able to exploit HUDOC.
While some member States do translate certain judgments into their
language, they usually limit this exercise to those directly concerning
them. Consequently, many of the Court's judgments are not accessible
to professionals in numerous member States.
30. One way of overcoming this problem might be to set up a database
containing the judgments which the Court considers to be the most
important. This database would have two sections for each member
State. The first would contain the most important judgments concerning
the whole of Europe and would be accessible within all the databases
of all the States. The second would contain the judgments that are
most important for the country concerned. The Council of Europe
could ask the member States to translate all the database judgments
concerning them into their national language(s). They would also
be asked to ensure that these translations are available to all
law professionals. Setting up a database along these lines would
require serious commitment from the member States and they would
have to be prepared to allocate the necessary human and financial
resources to it.
31. Although the training laid on by the Court for law professionals
enables the participants to gain knowledge of its case law and an
understanding of how it works, which they can then use in their
own countries, it clearly cannot provide training on a big enough
scale owing to a lack of resources. The Court has a very substantial
caseload, and its primary role is to ensure compliance with the
Convention by adjudicating applications within a reasonable lapse
of time. As the Court has limited resources available to it, Court
activity per se has to be
prioritised. That said, the Court's judges and lawyers have a legitimate
role to play in “dialogue” – a term which I prefer to “training”
– with their counterparts in national judicial institutions, including
at the highest level of national courts. These activities give members
of the judiciary an opportunity to discover the Convention's supervisory
body from within and meet and dialogue with the main players in
the system. The two aforementioned programmes in the Court registry
should therefore be pursued, on a reasonable scale, which would
also enable the Court to make up for its chronic lack of staff and
the member States to benefit from having professionals with a good
knowledge of the Court's working methods and case law.
5.2 Co-operation and
training activities provided under the HELP Programme
32. The European Programme for human rights education
for law professionals (HELP Programme) was launched in 2006 in the
wake of the Third Summit of Heads of State and Government of the
Council of Europe held in Warsaw in 2005, in response to the aforementioned
Committee of Ministers Recommendation Rec(2004)4. The HELP Programme
is tasked with meeting priority needs for training on the Convention
for the 47 member States' law professionals by developing training
tools and courses with a multidisciplinary approach.
33. The HELP Programme is based on the principle of open education,
giving law professionals the opportunity to learn what they want,
when they want, while giving them a sense of responsibility for
their training and easy access to learning tools.
34. Since being set up, the HELP Programme has provided national
training institutions with assistance in incorporating the Convention's
standards into basic and further training programmes for judges,
prosecutors and lawyers.
35. Training tools and resources have been made available to national
training institutions and include training manuals, books on specific
themes, Convention glossaries, standard curricula, presentations
and practical case studies and themed courses on certain articles
of the Convention. These tools have been translated into numerous
languages and are accessible online free of charge on the HELP Programme
site.
Note The site may also be used for E-learning
by law professionals for their own vocational development. It also features
tools for use by national trainers to train colleagues. A HELP drafting
committee has been set up to ensure that the tools developed are
of a high quality and are up-to-date.
36. The HELP Programme has set up a peer-to-peer human rights
training network between national training institutions, bar associations,
relevant international professional associations, the Council of
Bars and Law Societies of Europe (CCBE)
Note and the European Judicial Training
Network (EJTN).
Note The aim of the HELP network is to
promote exchanges of good practices and experience between those
running basic and further training for law professionals. Furthermore,
the HELP Consultative Board, made up of six representatives from different
States, was elected by the HELP network for the first time in June
2013 with the aim of providing advice to the Secretariat of the
HELP Programme.
37. The HELP Programme was substantially expanded in 2012, from
12 to 47 partner countries (all the Council of Europe's member States),
and now targets lawyers as well as judges and prosecutors. The HELP website
offers free online access to material and tools for training on
the Convention. These include a database of training materials,
a methodology manual for training on the Convention, Convention
glossaries and online learning manuals and courses on the Convention.
The material is now available in a number of languages, and training
resources in a given language may be found on the corresponding
national web pages.
Note
38. The HELP Programme was chiefly designed to deal with the subjects
covered by the Convention. Other Council of Europe themes which
supplement the Court's case law, such as child-friendly justice,
social rights, family law, alternatives to detention, non-discrimination
and freedom of expression on the Internet, are also covered by the
Help Programme.
39. In 2012, 20 national pages were created with funding from
the Human Rights Trust Fund. These provide training tools and information
on various human rights training initiatives, in the respective
national languages. In addition, contact persons have been appointed
in 15 countries, with the role of providing law professionals in
their country with detailed information and news on the HELP training
tools available. Those contact persons also serve as a link between
the Council of Europe and the training institutions and bar associations.
In 2012, distance learning on topics such as family law and human
rights, criteria for admissibility before the Court and alternatives
to detention was laid on in 10 countries. In 2013, these courses,
plus others on child-friendly justice and the prosecution of persons
accused of sexual harassment of children, were launched in other
countries. A total of 30 national training institutions for judges
and prosecutors and 15 bars have directly benefited from the HELP
Programme.
40. Although the HELP Programme was included in the priorities
of the Secretary General of the Council of Europe for 2014-2015,
it continues to run into funding difficulties. Between 60% and 65%
of its main activities are funded by the Human Rights Trust Fund
and the remainder by the ordinary budget of the Council of Europe. In
2013, the Human Rights Trust Fund granted €1 million to the HELP
Programme. The sum of €1 200 000 targeted for 2014-2015 appears
to pose a problem for the Fund. Moreover, the HELP Programme Secretariat consists
of just four full-time staff. Given the tasks assigned to it, the
resources available to this programme fall well short. Adequate
funding should be earmarked, in the Organisation’s ordinary budget,
to sustain this activity as a permanent feature.
5.3 The value of reinforcing
the HELP Programme rather than creating a new Council of Europe training
centre
41. The HELP Programme merits being consolidated as it
has already shown its worth. Since its launch in 2006, the HELP
Programme has constantly expanded the scope of its activities and
developed the training it provides on the Convention to bodies training
law professionals. Some aspects of the Programme such as the appointment
of contact persons are very recent developments and need time and
resources to achieve the impact hoped for in all the member States.
The HELP Programme should also be better equipped to more heavily
publicise the training and training tools on offer, which are still
unknown to many potential partner organisations and law practitioners.
42. Setting up a new Council of Europe training centre would bring
no added value. The Convention is only to be applied in domestic
law as a subsidiary measure, as national judges and prosecutors
must first interpret and apply domestic law provisions in line with
European requirements. The difficulties arise when a domestic provision
and/or practice clashes with the provisions of the Convention as
interpreted by the Court. This means that training at national level
is a better way of eliminating these sticking points than training
at the level of the Council of Europe, as it is a matter of reconciling
the Convention and domestic law. Furthermore, setting up a training
centre in Strasbourg would be particularly costly: in addition to
substantial operating costs, the training courses would be very
expensive to run. It would be necessary to finance the cost of law
professionals' travel to Strasbourg as well as their subsistence
expenses, which are unquestionably lower if those people are trained
in their country of origin. The HELP Programme, on the other hand,
better reflects the subsidiary ethos of the Convention, making it
possible to establish a network of national professional training
bodies and provide them, as well as individual professionals, with
tools for training on the Convention which are easily accessible online.
6 Conclusion
43. The Court has continued to develop substantial and
much-needed case law in recent years. While the large mass of work
produced has kept the Convention relevant to modern-day life by
adapting it to changing European societies, its ever-growing number
of decisions are making European human rights law a highly technical
and sometimes awkward instrument. This means that active efforts
to train professionals on the Convention must be continued and that,
once trained, they must be provided with a means of regularly updating their
knowledge.
44. The training of law professionals is clearly the responsibility
of the member States, which have established a great diversity of
structures and courses geared to their own legal systems. In the
spirit of subsidiarity on which the Convention is based, it is also
primarily the job of the member States to ensure that law professionals
who are currently training or already working have an adequate level
of knowledge of the Convention, as interpreted by the Court. As
we have seen, the methods and quality of such training varies greatly
from country to country, and the examples I have given show that
there is room for improvement. The competent bodies could make greater
use of the tools already or yet to be created by the Council of
Europe, particularly via the HELP Programme.
45. The HELP Programme merits being reinforced, including through
the allocation of resources in the Council of Europe's ordinary
budget, in keeping with the tasks assigned to it. Given its substantial
caseload, the Court should continue to concentrate its limited resources
primarily on its court activities as defined by the Convention.
At the same time, continued “dialogue between judges”, including
with the Strasbourg judges' peers in the highest national courts,
can help to further improve the application of the Convention's
principles by national judges on the basis of better mutual understanding.
46. To that end, Committee of Ministers Recommendation Rec(2004)4
should be updated as soon as possible to take account of new developments
since its adoption.
