Update: 19.08.2011

On the reform of the European Court for Human Rights: Protocol No.14

Course of the reform

In November 2000, the Conference of Ministers on Human Rights called on the Committee of Ministers to draft a study on ways and possibilities of ensuring the efficiency of the European Court of Human Rights. In view of the rapid increase in complaints lodged with the European Court for Human Rights, a change in personal resources and limiting regulations had become necessary. Protocol No.14 was adopted on 13 May 2004 but only entered into force on 1 June 2010 because of a prolonged blockage by the Russian Duma.

Ways of increasing efficiency

The report written by the Steering Committee for Human Rights (CDDH) identified three fields which were to be addressed in order to increase the efficiency of the Court:

  • Better possibilities to combat human rights violations on a national level and better domestic alternatives to appeal;
  • better and faster implementation of verdicts of the Court, as well as
  • an optimisation of the filtering mechanism of the Court.

On the content of Protocol No.14

The Steering Committee was then commissioned to work out a draft protocol, which resulted in Protocol No.14 which principally contains regulations that allow a better filtering of complaints. Compared to Protocol No.11 which radically reorganised the implementation mechanism, Protocol No.14 does not completely restructure the whole legal process but tries to provide the Court with the necessary means and tools for the rejection of invalid complaints. In this way, the Court is to be provided with the necessary time for the evaluation in cases which call for a close examination. The three main modifications in Protocol No.14 all serve this aim.

  • Single judge: According to the new Article 26 Para 1 ECHR the Court shall not only sit as Committee, Chamber or Grand Chamber but can also sit in a single-judge formation. The jurisdiction of these single judges which are supported by rapporteurs belonging to the Court’s registry (new Article 24 Para 2) is limited to the declaring inadmissible or striking out of applications in cases where such a decision can be taken without further examination (new Art 27 Para 1). If the single-judge formation cannot declare inadmissible or strike out an application, it will forward the complaint to a committee or to a Chamber. The single judges thus perform the function of a first selection institution in order to being able better to filter the huge number of complaints.
  • New reason for inadmissibility: According to the new Article 35 Para 3 (b) complaints are to be considered inadmissible if the applicant has not suffered a «significant disadvantage». The creation of this new, problematic reason for inadmissibility was intensely discussed upon at the time the Protocol was drafted. NGOs as well as individual Convention members fought this new admission criterion on the grounds that it undermined the individual complaint procedure. Two protective clauses were added to avoid that the absence of a «significant disadvantage» automatically renders a complaint inadmissible. In addition, complaints can only be considered negligible and irrelevant if the cause of action has previously been examined in accordance with the regulations before a national court.
  • More competences for the committees: The committees now have the possibility to allow repetitive complaints and to take substantive decisions (Article 28, Para 1 (a)). Up to now, the powers of these bodies of three were limited to deciding on the inadmissibility unanimously or to take them off the list of pending cases. As of now, the committees also receive the jurisdiction to decide unanimously on the admissibility of the respective complaints and even take substantive decisions should the questions forming the basis of the relevant complaints already have been decided on by the permanent jurisdiction of the Court. But unanimity is still a prerequisite for decisions on admissibility and for material decisions; can unanimity not be reached, the respective complaint is forwarded to the next chamber.

More competences for the Committee of Ministers

Protocol No.14 is not limited to these three changes but also strengthens the role of the Committee of Ministers in the implementation of European Court for Human Rights decisions. This gives the Committee of Ministers the possibility to approach the Court in connection with the decision or the interpretation of a verdict, in case the implementation of the verdict should be impeded by a problem of interpretation (new Article 46 Para 3). On the other hand, the new Protocol introduces regulations on the binding execution of judgements. The Committee of Ministers can now pursue action before the Grand Chamber against states which do not abide by judgements of the Court. Should the Grand Chamber find that a state has not lived up to its obligations the Committee of Ministers can decide on new measures to be taken (new Article 46, Para 4 and 5).

Further innovations

In addition, Protocol No.14 reinforces the independence and impartiality of the Court by prolonging the term of office of the judges to nine years, but they may no longer be re-elected (new Article 23, Para 1). The Chamber’s practice of deciding on both the admissibility and merits of a verdict together is now also reflected in the wording of the Convention (new Article 29, Para 1). Furthermore, the Council of Europe Commissioner for Human Rights may submit written comments and take part in hearings in all cases before a Chamber or the Grand Chamber (new Article 36, Para 3). And finally, Protocol No.14 adds a passage to the Convention which states that the EU can actually join the Convention (new Article 59, Para 2), in which case further adjustments would become necessary.

Ratification postponed by Russia

Protocol No.14 could only enter into force after having been ratified by all member states of the Council of Europe. The Russian Duma voted against Protocol No.14 on 20 December 2006 with a great majority, thereby blocking the reforms over years.

Protocol No.14bis and the Agreement of Madrid make breakthrough possible

Innovative steps were taken to circumvent the Russian blockade of Protocol No.14. A part of the reform was exported into Protocol No.14bis which was adopted on 27 May 2009 and already entered into force after ratification by three member states on 1 October 2009. Countries which had already signed Protocol No.14 could just issue a simple declaration that the new procedures could be applied to them.

The price to be paid for this strategy was that of a formal division of the Court. Until the coming into effect of the «regular» Protocol No.14, individual complaints from states which had signed Protocol No.14bis or an equivalent declaration were treated differently than complaints by states that had not signed this protocol (this is also the reason for which normally unanimity is called for among COE states). But the political pressure showed the wanted effect: after the entry into force of Protocol No.14bis, it took but 140 days for the Russian duma to ratify the «true» Protocol No.14, which then came into effect on 1 June 2010, invalidating No.14bis. It remains to be seen whether the new practices will really help to staunch the flood of complaints effectively.

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