In a case before the European Court of Human Rights, where a friendly settlement procedure has been unsuccessful, the respondent Government may make a declaration acknowledging the violation of the European Convention on Human Rights and undertaking to provide the applicant with redress. This is known as a unilateral declaration and is now governed by the new Rule 62A1 of the Rules of Court.
The use of such unilateral declarations has become more common since 2007. 692 applications were dealt with on the basis of a unilateral declaration in 2011 compared with 30 in 2007. In February 2010 the Interlaken Conference on the future of the European Court of Human Rights emphasised the potential role of unilateral declarations, especially for the handling of repetitive cases.
The European court has now reviewed its practice in this area to ensure clarity and consistency and has identified the following main principles.
Whilst all types of case may be concluded by a unilateral declaration, declarations submitted in sensitive or complex cases, and those concerning the most serious human rights abuses, will be examined with particular care and attention in the light of the criteria adopted by the European court in Tahsin Acar v. Turkey judgment (Tahsin Acar v. Turkey (preliminary objection) [GC], application no. 26307/95, 6 May 2003).
A unilateral declaration will usually be filed after an attempt to reach a friendly settlement has failed and may be appropriate at the just satisfaction stage of the proceedings in a case.
The filing of a declaration must be made in public and adversarial proceedings (unlike the confidential negotiations for a friendly settlement).
The applicant is invited to submit comments, in particular explaining why the European court should refuse to accept the declaration by way of settlement of the dispute.
If the applicant is satisfied with the terms of the unilateral declaration, the case will be struck out of the European court’s list as with any friendly settlement (Article 39 of the Convention), and its execution will be supervised by the Committee of Ministers
Even if the applicant wishes the examination of the application to be continued, the European court will decide whether or not it is justified (Article 37 of the Convention). If the Court is to conclude that it is no longer justified for it to continue examining the case, the following non-exhaustive criteria must be satisfied by the unilateral declaration:
- 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.
If the European court accepts the unilateral declaration, it is endorsed by a striking out decision or a judgment. If costs and expenses are not provided for, the Court may exceptionally make such an award under Rule 43 § 4 of the Rules of Court.
In the event of failure by a government to take the individual measures granted, the applicant may request that his or her application be restored to the European court’s list.
The decision will not, in itself and in principle, have the effect of preventing the applicant from pursuing any remedy that may be available at domestic level.
Recent examples of unilateral declarations are Bekerman v. Liechtenstein (application no. 15994/10, 29 November 2011), Liptay v. Hungary (application no. 12144/09, 22 May 2012), Rozhin v. Russia (application no. 50098/07, 6 December 2011), Megadat.com SRL v. Moldova (application no. 21151/04, 17 May 2011).