International human rights & fact-finding: an analysis of the fact-finding missions conducted by the European Commission and Court of Human Rights

Introduction: It is fifty years since the European Court of Human Rights was first established as the body responsible for deliberating on states’ compliance with the European Convention on Human Rights, a treaty adopted under the auspices of the Council of Europe in 1950. Since then, the Court has arguably established itself as one of the most effective human rights mechanisms in the world. Its jurisdiction now extends to 47European states. Its judgments are legally binding on those states and have led directly to numerous changes in domestic law, policy and practice in a wide range of areas. The standards and principles laid down in the text of the Convention itself have been augmented by a series of additional protocols, and the Court has continually demonstrated an innovative and flexible approach to its role of interpreting the Convention, reflecting the well-established principle that the Convention is considered to be a ‘living instrument’. The Convention has acquired such an established and fundamental place in the European legal order that it has been described as “a constitutional instrument of European public order”. As Rolv Ryssdal, the former President of the Court has put it: As far as the democratic protection of individuals and institutions is concerned, the Convention has become the single most important legal and political denominator of the states of the continent of Europe in the widest geographical area. The Convention also served as a model for the American Convention on Human Rights (1969) and in certain respects also for the African Charter of Human and Peoples’ Rights (1981). The European human rights system has been through several stages of development before crystallizing in its current form as a permanent court. The Convention established a mechanism whose mandate was “to ensure the observance of the engagements undertaken by the High Contracting Parties”. Three institutions were entrusted with this responsibility in the early years: the European Commission of Human Rights (set up in 1954), the European Court of Human Rights (set up in 1959) and the Committee of Ministers of the Council of Europe. The Committee of Ministers originally had an adjudicative role, as well as being responsible for the supervision of the enforcement of the Court’s judgments Since the 1980s, there has been a marked increase in the number of applications brought before the former European Commission and Court of Human Rights. The inexorable growth in the number of individual applications poses a serious threat to the effectiveness of the Convention system. Consequently a major challenge that the Court is facing is to handle applications within a reasonable time. As at 1 September2008, there were 94,650 cases pending before the Court. The Court’s ‘output’ has also risen steeply: in2007, the Court delivered 1,735 judgments and made 27,057 decisions on admissibility (or striking out).However, the output is still not keeping pace with the incoming cases, hence the continuing rise in the backlog. While it may often have been suggested that the Court has become a ‘victim of its own success’, it can be more pertinently argued that the Court has become a victim of the failures of the member States