The friendly settlement procedure in the European Court provides the respondent government and the applicant with an opportunity to resolve a dispute. It is an agreement between the parties which is very much like an out of court settlement in national legislation and affords them an opportunity to resolve an issue, usually on payment to the applicant by the respondent Contracting Party of a specified sum of money or on the basis of an undertaking by the respondent Contracting Party to provide appropriate resolution of the issue, or both.
The legal basis for friendly settlements is found in Article 39 of the European Convention on Human Rights, paragraph 1 of which stipulates:
“1. At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto.”
At the same time as a case is communicated to the respondent government, the European Court will write to the parties to inform them that the Court is at the parties’ disposal for the purpose of securing a friendly settlement and inviting proposals from either party (Rule 62¹§1 of the Rules of Court). The Court will usually set a time limit for any proposals. However, the time limit may be extended (the Court is keen for cases to be resolved and so is likely to grant more time if a settlement is a real possibility).
It is common for the European Court actively to become involved in facilitating settlement in a proactive way, and it may consider striking out an application if an applicant is considered “unreasonably” to have refused friendly settlement proposals. For example, when financial negotiations run into difficulties, the Court may be prepared to suggest what would represent a reasonable sum for settlement of the case. Rule 62 of the Rules of Court permits the Court to take any steps that appear necessary to facilitate settlement, which may include arranging a meeting between the parties (see, e.g., Koksal v. Netherlands, application no. 31725/96, 20 March 2001). The Court’s practice as regards applications concerning “well-established case-law” is now to be rather more proactive: in order to encourage the resolution of such cases, the Court may of its own motion send settlement proposals to the parties.
Friendly settlement negotiations are confidential and are without prejudice to the parties’ arguments in the contentious proceedings (Article 39§2 of the Convention and Rule 62¹§2 of the Rules of Court). The details of the negotiations cannot be referred to or relied on the substantive proceedings, or in any other contentious proceedings. Breaching this confidentiality could lead to an application being declared inadmissible on grounds of abuse of the rights of application.(See, e.g. Handrabova and others v. Czech Republic, application no. 42165/02 and 466/03, dec. 29 September 2007; Popov v. Moldova (No. 1), application no. 74153/01, 18 January 2005; Mirolubovs v. Latvia, application no. 798/05, 15 September 2009).
The European Court will be willing to facilitate settlement of cases as this will mean a reduction in the Court’s substantial backlog of cases. If terms are agreed, both parties should write to the Court to confirm the terms of the settlement agreement and request that the case be struck out of the Court’s list of cases. The Court will publish a decision or judgment (if concluded post-admissibility) recording the facts of the case and terms agreed between the parties and formally striking the case out of the list (Articles 39§3). This decision will be transmitted to the Committee of Ministers, which shall supervise the execution of the terms of the friendly settlement as set out in the decision (Articles 39§4). Settlements therefore have a higher “visibility” than was previously the case prior to the implementation of Protocol No. 11.
In accordance with Article 37§1 of the Convention, in striking out applications, the European Court will continue the examination of the case “if respect for human rights as defined in the Convention and protocols thereto so requires”. The factors affecting this decision will include the importance of the issue raised by the case, the terms of settlement proposed by the parties and whether the issue has previously been considered by the Court. Thus, a friendly settlement that had been agreed between the parties in Ukrainian Media Group v. Ukraine was rejected by the Court because of the gravity of the alleged interferences with the applicant company’s right to freedom of expression (Ukrainian Media Group v. Ukraine, application no. 72713/01, 29 March 2005).
The European Court may also decline to confirm a friendly settlement agreement if, for example, it is not satisfied that the applicant has unambiguously consented to its terms (see, e.g. Paladi v. Moldova, application no. 39806/05, 10 July 2007, §§51-53, the case was subsequently referred to the Grand Chamber).
Article 37§2 enables the European Court to restore the case to its list if the terms of friendly settlement are not subsequently complied with (see, e.g. Katic v. Serbia, application no. 13920/04, dec. 7 July 2009).
Thus, the European Court always encourages parties to negotiate a friendly settlement. If no agreement is reached the Court will proceed to examine the merits of the application.