The introduction by the ECHR of compulsory reconciliation of the state with the applicants contains hidden risks.
All truth-seekers at the European Court of Human Rights will soon face procedural changes. Already from 2019, the consideration of the complaint by the House of Judges must be preceded by an attempt of a peaceful settlement by the parties to the dispute. Who will benefit from this?
The Court in Strasbourg de facto is the highest judicial authority of the international level, which can appeal to ordinary citizens and legal entities, and even the state in case of violation of their rights. For the applications of individuals, a requirement is established: it is necessary to exhaust all means before applying national protection – to pass from the lower Court to the highest.
And only in the case when the desire for justice and the desire to restore rights will not disappear, you can file a complaint with the ECHR, knowing that you have to wait for a decision for years … Therefore, only the most enduring, the most courageous and principled pass Strasbourg.
But there were a lot of such «most». As a result, the European Court today is overloaded with work, which is enough for years to come.
In an effort to reduce the number of cases pending, and to speed up the complaints procedure, the secretariat of the ECHR, during a recent meeting with representatives of human rights organizations, announced the introduction of mandatory preliminary negotiations for the parties from 2019.
In fact, citizens will be forced to seek a compromise in order to deprive the European Court of the need to study an extra statement.
During the procedure, which will initially last 3 months, the parties must attach maximum effort to achieve reconciliation. If necessary, the period of the negotiation phase may be extended. Competitive procedure will begin only if reconciliation does not occur, the respondent government will put forward its proposals for compensation, or if such compensation does not respond, in the opinion of the Strasbourg Сourt, to the circumstances of the case. How are innovations announced by the ECHR affecting complainants, what to prepare for and what to expect, what risks are hidden behind such changes?
Pay off for nothing
The first (most obvious) risk is to be bribed. Despite the fact that the ECHR for many is the last hope for the restoration of violated rights and compensation, the use of conciliatory negotiations can result in a simple bribe. In this case, the amount of compensation that the applicant will actually receive, and the amount of compensation that the Court would determine in the decision, may differ significantly. And this is half of the trouble.
The main thing is that in this way the value of the ECHR decisions and its function as a Court in general is actually leveled out, because the question boils down to resolving the material aspects the scheme is «paid off» when the respondent government simply, in essence, buys the promise of the applicant not to sue settle down by agreeing on the proposed changes.
It is reasonable to note that only a small proportion of applicants use the services of lawyers to participate in the process. Most rely on their own strength, the goodness of the Court, because lawyers are expensive.
Neglecting qualified assistance, the applicants put themselves in danger – in the process of negotiation, when professionals and experienced representatives of the government sit on the opposite side of the table, it can be trivially deceived. But the ECHR is being approached with the hope of a fair resolution of the case…
What about the infallible court?
By transferring the obligation to resolve the dispute to the parties, the Court in a certain sense deprives the applicant of the possibility of reaching the end, namely, the realization of the right to a fair trial guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Noteworthy that this law itself is understood by the ECHR as a set of procedural and material elements and among which is access to court.
The decisions have repeatedly expressed the view that access is, in particular, that the case of a person be considered by an impartial, objective court within a reasonable time. And in the case when the dispute will be resolved through negotiations between the parties, both of which have their own purpose, a fair judge who must impartially evaluate all the circumstances of the case is simply necessary.
When it’s not personal
Certain risks are also seen in cases of a lawsuit from one state to another when the question that is put before the Court goes beyond private interests. There is no need to wander in search of examples. Recently, Ukraine against Russia because of the illegal actions of the latter in the East and South of our country has submitted a dozen statements. All of them concern really pressing issues that require a speedy solution. Because every minute (without exaggeration) is influences the fate of people and the state.
It is logical to assume that the state’s appeal to the ECHR indicates that it was not possible to reach a peaceful settlement of the conflict by diplomatic means. Therefore, by sending such parties to the negotiations, the Court simply delays the consideration of the issue, because the probability of changing its position and making concessions to the opponent is zero.
Of course, one can insist that the European Court has warned in its best traditions: matters of extreme importance, which are of particular interest and require immediate resolution, will be considered outside and without a stage of negotiations, but for some reason these words are contrary to action. It is unlikely that the military conflict that has arisen between Ukraine and Russia is a secondary event. Both states and their citizens suffer from this to a lesser or greater degree.
However, the ECHR was not in a hurry to review the applications and only now decided on the date of the first Court session in the case of one of the statements of Ukraine. The criterion of «urgency and importance» is very evaluative, and therefore it is clear that the Court, in determining the degree of urgency of a particular case, should evaluate all circumstances at its own discretion. Deferrals of such cases will certainly have negative consequences – the continuation of armed clashes, mutual sanctions and other restrictions.
Given the meaning
Not to mention the practical purpose of applying to the ECHR. One way or another, the applicant appeals to an international institution in anticipation of receiving a decision that will help him to restore the rights violated by unlawful actions of the respondent state.
Despite what values are protected by the convention, one can consciously assume that it is the presence of the solution, including in its documentary form that should become the main reason for further confirming the fact of the violation and receiving adequate compensation. Moreover, by its decisions, the Court also confirms that the state has violated a certain article of the convention, and makes comments aimed at avoiding such violations in the future.
This is of particular importance in cases of state complaints against another state, when in order to establish at a formal level and confirm a certain fact, the decision of an independent competent judicial authority, which is the ECHR, is necessary. And on the availability of such a decision will depend on the further development of affairs. All interstate disputes always concern not only two parties to the conflict, but also other states.
Under such circumstances, a formal decision will be the prejudicial fact that will be a signal to the world community for taking certain measures or, conversely, the cessation of certain actions. Not the last role in this is played by the credibility of the ECHR and the high level of confidence in its judges, which leads to an overwhelming confidence in the decision. But the agreement of the parties at the negotiation stage will definitely not be such a weight
Desirable but not really
From this we can conclude that Strasbourg is unlikely to achieve from its innovations the effect that it expects. It must be remembered that the European Court is the authority that for many becomes the final point in many years of disputes. The goal of each applicant, appeals to the ECHR, is to obtain a decision from a fair and impartial body, which must fulfill its obligations under an international treaty.
Negotiations before the trial are only an additional obstacle that can slow down the procedure as a whole, and if it reduces the number of applications, it is very insignificant. Without agreeing, the parties will still wait for the consideration of the case.
So, shifting some of the responsibilities to the parties can hardly be considered an adequate and effective filter, because those issues in which formal agreements will not be relevant can remain without attention.