Innlegg på seminar om menneskerettsdomstolens framtid

Mr Secretary General, ladies and gentlemen,

Representatives of European states set up the Council of Europe 60 years ago because they wanted to prevent history from repeating itself by creating a set of  strong values and effective safeguards for human rights, democracy and the rule of law in post-war Europe. Conflicts in Kosovo, Chechnya and South Ossetia, the horrors of Srebrenica, Beslan and Madrid, the tensions created by substantial flows of migrants east–west and north–south are just a few recent examples of why we need to be vigilant if we are to ensure respect for human rights in Europe today.

The European Convention on Human Rights and the European Court of Human Rights are the Council of Europe’s greatest achievements. The Court is the central force for improving human rights protection on our continent, for “making rights real”, to borrow the slogan of the Swedish chairmanship of the Committee of Ministers last year. That is why the well-being of the Court is a top priority for Norway in the Council of Europe, why the Norwegian Government took the initiative last year to create a new Human Rights Trust Fund, why we welcome the European Union’s decision, through the Lisbon Treaty, to accede to the European Convention on Human Rights, and why we have supported this seminar.

At 50, the Court is more productive than ever, continually striving to improve human rights protection and its own working methods. The Court disposed of more than 32.000 cases last year.

Nevertheless, the Court’s future is looking very, very bleak. The figures speak for themselves. I will mention just a few. The Court received almost 50.000 new applications last year. The annual number of new applications has risen on average by more than 10% per year over the past ten years. The number of pending cases has reached 117.000, ten times as many as ten years ago. If that trend continues, the Court will have more than a million pending cases in 2019. 

Effective measures must be taken without delay to prevent the Court from collapsing under the weight of its caseload. We want the Court to survive and remain relevant in the future. High-level focus is needed on the problems of the Court now.

That is why we are very pleased that Switzerland will be hosting a high-level conference on the future of the Court in Interlaken in February. We hope that in Interlaken the States Parties, the Court itself and the other organs of the Council of Europe will acknowledge that they have a shared responsibility to take prompt and resolute action to save the Court before it is too late. We want the Court to still be alive and kicking on its 60th anniversary in 2019.

We want a Court that can effectively contribute to ensuring human rights in Europe when national implementation of the Convention has failed. The Court should be able to process applications speedily and with the thoroughness that they deserve. Priority should be given to cases that concern serious or systemic violations or matters of principle. The quality of the Court’s case law must not be sacrificed in a never-ending quest for increased productivity at minimum cost. The Court will lose its authority and relevance if its case law is not coherent and of the highest quality.

How can this be achieved? The Council of Europe’s Steering Committee for Human Rights has identified two key factors: subsidiarity and equilibrium.

In short, the principle of subsidiarity means that the member states must do more and that the Court in Strasbourg must do less. Equilibrium means that the Court must be able to process as many applications as it receives. It cannot continue to build up an enormous backlog.

In order to reach equilibrium, the Court’s case processing capacity will have to be increased, at least in the short and medium term, as long as the number of incoming applications continues to grow. But effective measures must also be taken at once to reduce the flood of incoming applications. There is a limit to how fast and how big the Court can grow.   

So what can be done to reduce the flood of applications? The member states have the primary responsibility under the Convention for reducing the number of well-founded applications. They must act to prevent and remedy violations at home. The reform package adopted by the Committee of Ministers of the Council of Europe in 2004 contains a number of recommendations concerning general measures to improve implementation of the Convention at national level. The member states said that they would implement those recommendations speedily and effectively. It is time to make that promise real.

The Court and the other Council of Europe bodies must also consider how they can strengthen, target and coordinate their efforts to assist and put pressure on states to take the necessary measures at national level.

90% of the applications to the Court are clearly inadmissible. The flood of such cases must be stemmed by providing sufficient information to potential applicants on the Convention’s admissibility criteria. At the same time it is important not to deter well-founded applications.

Even if effective measures are taken at national and European levels, the number of applications will probably continue to grow for quite some time. The Court’s case processing capacity will therefore have to be increased, at least in the short and medium term, in order to reach equilibrium.

The Court has already done a great deal to rationalise its working methods and increase its productivity. It must continue to look for opportunities for improvements without sacrificing the quality and coherence of its case law. In accordance with the principle of subsidiarity, the Court must also consider whether in some cases it could leave more responsibility to national authorities and to national courts, if they really do make rights real and respect Strasbourg case law.

The entry into force of Protocol 14 to the Convention will increase the Court’s case-processing capacity. According to the Court’s estimates, the Protocol will increase productivity by at least 20%. Unfortunately, the Protocol has not yet entered into force, because we are still awaiting Russia to ratify it.

The new single judge and committee procedures have, however, started to come into effect for Norway and other states that have explicitly agreed to this. We are pleased that the Russian Duma is now reconsidering the question of ratification. Hopefully, Protocol 14 will soon enter into force in its entirety for all member states.

Though indispensable, Protocol 14 alone will not increase the Court’s case-processing capacity sufficiently. Even if it entered into force today, the Court’s backlog would still continue to grow. In order to achieve equilibrium, the Court’s registry must be further strengthened, and its 47 judges must at least be relieved of the clearly inadmissible and repetitive cases. We therefore believe that a new filtering mechanism needs to be established as soon as possible. In addition, exceptional measures will also be needed to deal with the Court’s backlog of cases.

We hope that the Interlaken conference will give clear guidance on measures to be taken by member states, individually and collectively, by the Court and by other Council of Europe bodies.

We are very grateful to the Norwegian Centre for Human Rights for organising this seminar, which will help us to prepare for the Interlaken conference. It will also be a useful opportunity for consulting civil society and other Court stakeholders on the issues to be addressed at Interlaken. We look forward to hearing what the representatives of the Court in Strasbourg, member states, civil society and other stakeholders want the Court to be like in the future, and how this can be achieved. I wish you a successful seminar.