Strasbourg Court’s new non-contentious phase – a tax on lawlessness?

Jessica Gavron, Legal, Director, European Human Rights Advocacy Centre, London

It is widely recognised that the European Court of Human Rights is under huge pressure to reduce its caseload, currently standing at almost 60,000 cases. To this end, the Court has been increasing the number of cases resolved by friendly settlements and unilateral declarations and in January this year started trialling a new compulsory 12 week non-contentious phase to its procedure. The intention behind this new phase is the early, expeditious and domestic resolution of cases, involving greater ‘burden sharing’ of the caseload with Contracting States. The friendly settlement of cases could justifiably lead to the resolution of many pending cases and has the potential benefit, with proper oversight, of allowing for more specific remedies than may be forthcoming from a final judgment. However, the implementation and conduct so far of this new phase has given human rights lawyers and applicants cause for serious concern.

Friendly settlements have long been a feature of the Court’s procedure and are provided for by Article 39 of the Convention, and Rule 62 of the Rules of Court. Requiring the approval of the Court in accordance with Article 39, friendly settlements are not just a private matter between the parties but involve judicial oversight to ensure that they are compatible with the protection of human rights in the Convention. Before the introduction of the new phase, in the majority of cases the Court at the communication stage simply informed the parties of the possibility of concluding a friendly settlement and left them to it. In some cases within a limited category, mainly relating to the length of proceedings and prison conditions, the Court put forward a specific proposal consisting of an amount it considered appropriate for the resolution of the case. The new phase is rolling this latter approach out across the Convention provisions.

My colleagues Philip Leach and Nino Jomarjidze have previously written about the need for compliance monitoring of undertakings given in friendly settlements and unilateral declarations. This post assesses the trial phase of the new procedure from the perspective of the applicant and their representative.

Selection of cases in which the Court makes a concrete proposal

Limited guidance has been published about the method of the selection of cases in which the Court itself makes a specific proposal for a friendly settlement under this new procedure. To date the Court has publicly confined itself, briefly and vaguely, to indicating the circumstances in which it considers a proposal would not be appropriate: ‘for example cases raising novel issues which have never been examined by the Court or cases where for any specific reason it may be inappropriate to propose a friendly settlement’ (Court’s press release). The European Human Rights Advocacy Centre (EHRAC) has been assured at meetings with Judges and representatives of the Court that the Court would not propose a friendly settlement or accept a unilateral declaration in cases where there is a grave unresolved systemic underlying issues. This accords with the Court’s jurisprudence on unilateral declarations, in which relevant factors to consider when striking out a case on the basis of a unilateral declaration include the nature of the complaints made and  ‘the nature and scope of any measures taken by the respondent Government in the context of the execution of judgments delivered by the Court in any such previous cases, and the impact of these measures on the case at issue.’ (Tahsin Acar v Turkey § 76). There is also, of course, the wording of Article 39(1) of the Convention stipulating that any friendly settlement is made on the ‘basis of respect for human rights as defined in the Convention’.

A February 2019 paper produced by the Registry for the Steering Committee on Human Rights (CDDH), sets out five exceptions to the rule of making a concrete friendly settlement proposal: when an application i) appears to be ‘borderline’ in the light of the Court’s jurisprudence; ii) raises new issues not yet examined; or iii) is politically and/or media sensitive; or iv) where fixing a sum is difficult in view of the potential existence of pecuniary damage requiring complex or speculative calculations; or v) where for specific reasons, notably where respect for human rights so requires, the Rapporteur, President or Chamber do not wish a concrete friendly settlement proposal to be made. Particularly grave or systemic violations are notably absent from this list, unless presumed to fall within this fifth exception.

Despite this, and in the absence of clear published guidelines, in practice there appears to be no coherent method or consistency between the Court’s Sections in the selection of cases in which the Court itself makes a proposal under the new phase. The EHRAC litigates a wide range of cases before the Court against Russia, Ukraine, Georgia, Armenia and Azerbaijan together with partner lawyers from the region. Within our experience the Court has made bare ex gratia proposals with respect to the same Contracting State in a right to life case concerning domestic violence resulting in femicide and a number of state agent ill-treatment cases, but not in a property rights case concerning the confiscation of a tractor. The Court provides no reasoning for its decisions to select (or not) these particular cases as appropriate for a settlement proposal. Factors that should have been considered by the Court include the fact that right to life and torture cases concerning state agent perpetrators raise the most grave human rights abuses; that the State concerned is also facing a number of pending femicide cases, indicating that there may be a systemic underlying issue of protection; and that it has a group of similar state agent violence cases under enhanced supervision by the Committee of Ministers, whose latest decision has identified an ongoing problem of ineffective investigation into state agent ill-treatment. The fact that a property case concerning confiscation of a tractor was not identified by the Court as suitable for a friendly settlement serves to underline the incoherence of the process.

Appropriate settlement

Once the Court decides that a case is appropriate for friendly settlement under the new non-contentious phase, it provides a concrete proposal. Its terms are set out by way of an appended ‘pro forma’ offer letter in the name of the Government Agent and acceptance letter in the name of the applicant’s representative – both requiring only a signature. There is no indication, and certainly no impression given, that this is merely a starting point. Nowhere does the letter set out any guidance for the applicant or Government Agent.

So, what exactly does the Court consider an appropriate settlement in, for instance, a case in which an applicant is brutally beaten by police officers? To date, and without exception, the friendly settlement proposals made by the Court under the new phase that we have seen, including right to life and torture cases, have merely consisted of an ex gratia payment with no acknowledgement of any violations. An ex gratia payment, as lawyers well know, is by definition a no-fault payment that does not acknowledge any causality between the payment made and the injuries suffered or actions that caused them. It therefore does not even constitute compensation. Given that such an offer constitutes the Court’s assessment of what is appropriate in order to resolve the case, this represents a significant departure from its own jurisprudence on sufficient redress. It is the Court’s established law that payment of compensation is insufficient in cases of ill-treatment by state agents and requires an effective investigation leading to the prosecution of those responsible. Without this, the Court reasons, state agents could abuse their position with impunity and the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, would be ineffective in practice (Jeronovics v. Latvia §105).

The Court has given no explanation as to why it is restricting itself to ex gratia payments. If it considers it is unable to suggest an acknowledgement of violations or appropriate non-monetary undertakings (e.g. to investigate) without an assessment of the merits, it is not clear on what basis it is calculating the sum to be paid by the Government. The CDDH paper did, in fact, suggest the proposal could include relevant undertakings, but this does not appear to have been taken up in the cases we have seen. Since the procedure currently stipulates a simultaneous deadline for the comments of the parties the applicant will generally have to consider the ‘offer’ before the Government has actually made it. As an offer originating from the Court the inescapable signal sent to the applicant is that the Court considers the case not to warrant further consideration; that the payment is not required to be in recognition of any violations; and that no non-monetary provisions, such as undertakings to investigate, are required. It is difficult to conceive that a Government Agent would raise the stakes at this stage by recognising violations or providing onerous undertakings that the Court itself does not require. Without an acknowledgement of a violation and/or an undertaking to investigate, the Committee of Ministers’ supervision of a friendly settlement, which is strictly confined to the terms agreed, is limited to payment of the ex gratia sum regardless of whether the case concerns torture, femicide or enforced disappearance.

It is unclear what the Court will do if the applicant rejects the proposal and the Government submits a unilateral declaration on the same terms, given that those terms are the Court’s own. The CDDH paper proposes exactly this action in cases where the applicant rejects the friendly settlement: ‘the Government can seek to have the application struck out of the list of cases by introducing a unilateral declaration reproducing the content of the friendly settlement declaration’. However, a mere ex gratia payment is contrary to Rule 62A of the Rules of Court, section 1(b) of which requires that: ‘Such request shall be accompanied by a declaration clearly acknowledging that there has been a violation of the Convention in the applicant’s case together with an undertaking to provide adequate redress and, as appropriate, to take necessary remedial measures.’ The jurisprudence of the Court has followed and developed this approach (Tahsin Acar § 76). The Court’s information sheet on unilateral declarations provides a list of non-exhaustive criteria which the unilateral declaration must satisfy:

existence of sufficiently well-established case-law in the matter raised by the application; clear acknowledgment of a violation of the Convention in respect of the applicant – with an explicit indication of the nature of the violation; adequate redress, in line with the Court’s case-law on just satisfaction; where appropriate undertakings of a general nature (amendment of legislation or administrative practice, introduction of new policy, etc.); respect for human rights: the unilateral declaration must provide a sufficient basis for the Court to find that respect for human rights does not require the continued examination of the application.

It furthermore specifically rejects ex gratia payments as being at odds with a clear acknowledgement of a violation (footnote 7).

As part of the non-contentious phase the Court appears to be taking a more proactive approach to unilateral declarations, directly inviting Governments, if they no longer wish to continue friendly settlement negotiations, to submit a unilateral declaration within a specified time-frame. Such an invitation appears to underline the risk to applicants of their case being struck out should they refuse a friendly settlement. The stricter requirements of a unilateral declaration sit uneasily with the apparent lack of even nominal safeguards for a friendly settlement. The significant difference between a friendly settlement and a unilateral declaration is, of course, that the applicant agrees to the former. The pressure on the Court to reduce its caseload could give rise to the uncomfortable implication that the Court is testing the water at the friendly settlement stage to see if the parties can be persuaded to dispose of the case with a pay-off with no onerous conditions attached. However, while an ex gratia payment might constitute legitimate resolution for the restrictive category of cases it was originally applied to, when rolled out to the most serious human rights abuses it is deeply concerning. The requirement in Article 39 of the Convention, that a friendly settlement be made on the basis of respect for human rights, is not in evidence in our experience of the Court’s selection of cases nor in the ex gratia offers made.

The signal sent to applicants, that recognition of violations is unnecessary in even the most serious cases, has been just as effectively received by Governments in another worrying development. We have seen copycat ex gratia offers made by known repressive regimes in egregious cases in which such a proposal would previously have been unthinkable and in which the Court has not made a proposal. As a result a number of unresolved enforced disappearance cases are being settled with the approval of the Court for an ex gratia payment, no doubt due to the weariness of the applicants and the life-changing sum on offer. This is despite the fact that the impunity of the Contracting State’s agents has been condemned throughout the Council of Europe and remains one of the most intractable and enduring problems for the Committee of Ministers. Does the Court really consider that a pay off without undertakings is compatible with respect for human rights for the unacknowledged abduction, probable torture and murder of one its citizens by the State?

Conclusion

A fundamental aspect of Convention protection is that the Court’s judgments serve not only to decide those cases brought before it but to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to their observance by Contracting States. Although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout Convention States (Tahirov v. Azerbaijan, § 37).

The Court indisputably needs to reduce its caseload and an increase in friendly settlements, provided it is in the right cases and on the right terms, could constitute the effective resolution of many of the Court’s cases. However, as Swiss judge Helen Keller observes, friendly settlements have their inherent limits:

‘Friendly settlements cannot resolve the Court’s basic problem of a backlog or change the Court’s very mission of as an international judicial body for the protection of human rights and promotion of human rights…nobody would want to equate the ECtHR with a claims tribunal facilitating large numbers of money settlements originating from a country with systemic deficiencies.’

In our experience of the Court’s conduct of the new non-contentious phase concerning cases involving particularly grave or systemic abuses, it is not acting in the interests of human rights; it is not even operating as a compensation mechanism, but is merely facilitating the disposal of cases by expediting a tax on lawlessness.