The Duty of Cooperation of the Respondent State During the Proceedings Before the European Court of Human Rights
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The right of individual petition under Article 34 ECHR is the cornerstone of the European Convention on Human Rights, but it is rather odd that its efficiency can be so easily undermined by member states. Indeed, without the states’ cooperation in clarifying the facts, it is impossible for the European Court of Human Rights to adjudicate the case. Therefore, Article 38 ECHR obliges respondent states to furnish all necessary facilities to the European Court. Eventually, the ultimate goal in this provision is thus to conserve the effective character of the substantive rights in the ECHR. Statistical data reveal a growing unwillingness of certain member states to faithfully collaborate with Court in relation to certain fundamental rights, which is an alarming trend. A comprehensive case law analysis on the one hand reveals the exact situations where member states are failing in their duty to cooperate and their reasons for acting in that way, but it also shows the ingenuity with which the Court is expanding the scope of the protection under Article 38, and the legal consequences which it attaches to the establishment of a violation of the provision, and is thereby for the first time ‘giving teeth’ to this under-explored provision. While the Court’s interpretation of Article 38 aims to counter the erosion of the right of individual petition and thus renders the substantive rights in the Convention efficient, this contribution offers some suggestions to improve the current system.