Unilateral declarations and the European Court of Human Rights: Between efficiency and the interests of the applicant
| Author | Lize R Glas |
| Date | 01 October 2018 |
| Published date | 01 October 2018 |
| DOI | 10.1177/1023263X18796977 |
| Subject Matter | Articles |
Article
Unilateral declarations
and the European Court
of Human Rights: Between
efficiency and the interests
of the applicant
Lize R Glas*
Abstract
Faced with numerous repetitive applications, the European Court of Human Rights (ECtHR) has
welcomed the unilateral declaration mechanism as a way to handle these efficiently. In a unilateral
declaration, the state admits a human rights violation and promises to provide redress to the
applicant. On that basis, the Court strikes out an application and does not deal with its merits.
Some authors and non-governmental organizations warn against losing sight of the applicants’
interests whilst relying on unilateral declarations. Against this background, this article aims to
establish whether unilateral declarations are indeed (mostly) used to dispose of repetitive appli-
cations and how this procedure works in practice. The second aim is to determine whether the
interests of the applicants are sufficiently protected when the Court rules on unilateral declara-
tions. The analysis is based on all 1285 unilateral declarations, which the states parties to the ECHR
have proposed in the five years following 2 April 2012.
Keywords
Unilateral declarations, European Convention on Human Rights, European Court of Human
Rights, repetitive applications, interests applicants
* Radboud University, Netherlands
Corresponding author:
Lize Glas, Radboud University, Montessorilaan 10, 6525 HR, NIJMEGEN, Nijmegen, 6500 KK, Netherlands.
E-mail: l.glas@jur.ru.nl
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(5) 607–630
ªThe Author(s) 2018
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DOI: 10.1177/1023263X18796977
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1. Introduction
One of the major current challenges for the European Court of Human Rights (ECtHR) is the large
number of repetitive applications: more than four out of ten applications are repetitive.
1
Moreover,
the total number of repetitive applications increased from 30,500 in 2015 to 35,000 in 2016.
2
Such
applications result from systemic domestic problems, which remain unresolved even though the
ECtHR has already addressed them in a previous judgment.
3
These problems are, for example, the
length of civil proceedings in Italy, the non-enforcement or delayed enforcement of domestic
decisions in Ukraine and detention conditions in Russia.
4
When deciding these applications, the
Court merely repeats its well-established case law. The ECtHR and the states parties therefore
agree that repetitive applications should be disposed of efficiently and that their root cause – the
failure to execute judgments properly – should be addressed.
5
An innovation they have welcomed
in order to achieve the former aim is the Unilateral Declaration (UD).
6
It is, therefore, unsurprising
that UDs have become a ‘routine procedure’ ever since Turkey proposed the first UD in 2001.
7
In a UD, the respondent state admits a violation of the European Convention on Human Rights
(ECHR) and promises to provide redress to the applicant. Instead of having to resolve the merits of
a complaint in a judgment, the ECtHR decides (more efficiently) if the UD constitutes a basis for
striking the application out of its list of cases.
8
1. ECtHR, ‘High-level conference on the ‘‘implementation of the European Convention on Human Rights, our shared
responsibility,’’Brussels Declaration’, European Court of HumanRights (2015), https://www.echr.coe.int/Documents/
Brussels_Declaration_ENG.pdf, preamble (Brussels Declaration (2015)); ECtHR, ‘Annual Report 2016’, European
Court of Human Rights (2017), https://www.echr.coe.int/Documents/Annual_report_2016_ENG.pdf, p. 16, 193
(European Court of Human Rights, Annual Report (2016)).
2. ECtHR, ‘Annual Report 2015’, European Court of Human Rights (2016), https://www.echr.coe.int/Documents/
Annual_report_2015_ENG.pdf, p. 8 (ECtHR Annual Report (2015)); ECtHR, ‘Annual Report 2016’, European Court
of Human Rights (2017), p. 16. Unlike the Annual Report 2015 and the Annual Report 2016, the Annual Report 2017
does not specify the number of repetitive cases pending.
3. Steering Committee for Human Rights (CDDH), ‘Report on the longer-term future of the system of the European
Convention on Human Rights’, CDDH (2015), https://www.coe.int/en/web/human-rights-intergovernmental-coopera
tion/echr-system/future-of-convention-system, p. 32.
4. See generally P.-Y. Le Borgn, ‘Implementation of judgments of the European Court of Human Rights: 9th report
(provisional version)’, Parliamentary Assembly of the Council of Europe (2017), http://website-pace.net/documents/
19838/3115031/AS-JUR-2017-15-EN.pdf/18891586-7d6c-4297-b5f7-4077636db28e, p. 15.
5. Preamble to the Brussels Declaration (2015); ECtHR Annual Report (2016), p. 18; Council of Europe, ‘Copenhagen
Declaration’, Council of Europe (2018), https://rm.coe.int/copenhagen-declaration/16807b915c, para. 51 (Copenhagen
Declaration (2018)).
6. Council of Europe, ‘High Level Conference on the Future of the European Court of Human Rights Interlaken
Declaration’, Council of Europe (2010), https://www.echr.coe.int/Documents/2010_Interlaken_FinalDeclaration_
ENG.pdf, para. D(7)(a)(i); Council of Europe, ‘High Level Conference on the Future of the European Court of Human
Rights Izmir Declaration (2011)’, Council of Europe (2011), https://www.echr.coe.int/Documents/2011_Izmir_Final
Declaration_ENG.pdf, para. E(1-2); Brussels Declaration (2015), para. 9; Copenhagen Declaration (2018), para. 54(a).
See also Steering Committee for Human Rights (CDDH), ‘Report on the longer-term future of the system of the
European Convention on Human Rights’, CDDH (2015), p. 179.
7. H. Keller, M. Forowicz and L. Engi, Friendly Settlements before the European Court of Human Rights (Oxford
University Press, 2010), p. 69; L.R. Glas, The Theory, Potential and Practice of Procedural Dialogue in the European
Convention on Human Rights System (Intersentia, 2016), p. 287.
8. Additionally, UDs may be encouraged because, ‘an adequate solution at the national level, even if belated’ should be
preferred over a judgment of the ECtHR in the light of the subsidiarity principle, see B. Myjer, ‘It Is Never Too Late for
the State – Friendly Settlements and Unilateral Declarations’, in L. Caflisch et al. (eds.) Human Rights – Strasbourg
608 Maastricht Journal of European and Comparative Law 25(5)
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