Europos Žmogaus Teisių Teismas – konstitucinė justicija prieš individualią?

Abstract

The European Court of Human Rights (hereafter – the Court) is considered as the most successful guarantee of individual justice in the world. At the same time, the price of its success is high – there is a constantly increasing number of individual petitions to such an extent, which the Court is unable to handle. In this context, while the reforms of the Court’s operation and the Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter – the Convention) are inevitable, tendencies confirm that the Court is more and more embarking on the constitutional justice path. But the consequences of such reforms are still not clear and there are few scholars interested in its’ analysis from the perspective of an individual. For instance, can we prove that constitutional justice is a key to the Court’s backlog problem without at the same time denying the right to individual justice for some individuals, or that it protects the rights of individuals more effectively? And what is better for an individual overall? The author of this article aims to address these questions and for that purpose identifies and evaluates the features of the constitutional justice in the Court and what it means for an individual justice in the context of current and upcoming reforms of the Court (namely 14, 15 and 16 Protocols to the Convention). The article is composed of three constituent parts. Firstly, the author seeks to determine how far the Court has developed towards a body of a constitutional justice. Secondly, the author analyses the tendencies of constitutionalisation of the Court in the context of most recent reforms. Lastly, the author presents arguments for and against constitutionalisation of the Court from the perspective of an individual.
Having analysed the history of the Court’s establishment, its’ mission, functions, role, objectives of the Convention itself, doctrines and principles applied by the Court, as well as the nature of its decisions and other factors, the author states that the nature of the Court is heterogeneous, thus, it captures the elements of both types of justice. However, what is clear from the recent Court reforms is that the constitutional justice elements take the lead, in particular through introduction of pilot judgment procedure and various restrictions on individual petition (including those that may arise as a result of effectively applied advisory opinion). At the same time, the Court so far is not empowered to repeal or invalidate the legal acts infringing on the obligations under the Convention, it leaves extensive discretion to national bodies and grants an individual relief. Though this is not yet discussed to such an extent, but thinking ahead, resorting only to constitutional justice in the Court without maintaining individual justice in the future would neither be practical nor feasible, as assessment of compliance of states’ obligations can only be made with minimum concreteness, possible only in an individual case.
The efforts to address the backlog issue through changes introduced by the Protocols No. 14, 15 and 16 to the Convention have not had a meaningful effect so far. The “significant disadvantage” criteria has been applied in very few cases and not brought about the expected outcomes. More to the contrary – the new functions of the Court – to issue advisory opinions – even though aiming to shift the focus to prevention of human rights violations to national level, are likely to pose additional capacity constraints on the Court, possibly duplicate the functions of other Council of Europe and European Union mechanisms and, as practice of these mechanisms shows, is unlikely to provide more effective justice to the individuals. Thus, the first merit of the constitutional justice – to reduce the number of cases – so far has not proven to be valid. In addition, it is criticized as becoming quite selective (only “important” cases are examined, while the Court practice focuses a lot on financial impact of a violation for the individual in applying the “significant disadvantage” criteria) and the reduction of possibilities for individuals to approach Strasbourg Court due to new restrictions or advisory opinions allows the states to expect that less individuals will be able to complain. The second merit of constitutional justice – the focus on systemic human rights problems in the country – also does not withstand criticism, as not all individual problems are systemic, while other European or international mechanisms based on systemic monitoring of human rights problems do not produce effective results in the same way as the Court. Thus, is it worth to make it a similar mechanism, thereby making it less effective also in terms of individual justice? Lastly, states, reforming the Court, must be aware that having acquired the full constitutional powers the Court through its’ interpretation of the Convention obligations may develop human rights standards and expand human rights protection under certain articles of the Convention to such an extent that the states would not be prepared to meet the consequences of it.
It can be concluded that even though restrictions introduced for individual applicants by the recent Protocols to the Convention may have some negative effects and leave some individuals outside the system, they do not undermine individual justice as such. However, what is more important is an ideological and very consistent shift towards leaving the Court with “important” cases only through increasing the elements of constitutional justice, the train that we may not be able to stop.