Thursday, 8 March 2018

New ECHR Readings

Please find here a selection of recent academic writings on the European Convention on Human Rights and its Court:

* Elisabeth Lambert Abdelgawad, 'The practise of the European Court of Human Rights when striking out applications, Netherlands Quarterly of Human Rights, vol 36, no. 1 (2018):

'This article analyses how the European Court of Human Rights has applied Article 37 of the European Convention on Human Rights that gives it the power to strike out pending cases in the current context of an overwhelmed Court by individual applications. This article shows that the Court’s interpretation of Article 37, while being casuistic and pragmatic, has evolved along the principles of subsidiarity and procedural justice and that the Court has used its discretion, notably to end cases regarding the expulsion of migrants. Yet this tool has not been a way of disposing repetitive applications which account for half of the pending cases.'

* The seminar report of the 'The Evolving Remedial Practice of the European Court of Human Rights' held in Strasbourg', which was held in Strasbourg in November 2017, is now published online:

'How far can - and should - the European Court of Human Rights (ECtHR) recommend or even require states to take certain measures after the finding of a violation of the European Convention of Human Rights (ECHR)? How do different actors, both at the Council of Europe and national level, perceive the opportunities and risks of the Court being more specific or prescriptive on the prospects for success of implementation of its judgments?'

'Das Buch untersucht mit der Margin of Appreciation eine der bekanntesten und doch umstrittensten Rechtsfiguren der Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte.Es entwickelt eine schlüssige Kritik ihrer bisherigen dogmatischen Fassung und zugleich einen praktisch anschlussfähigen Vorschlag für eine Neuaufstellung der überkommenen Doktrin. Bestehende kritische Ansätze des bisherigen Schrifttums werden aufgearbeitet, weiterentwickelt und mit besonderer Konsequenz angewandt.Die Autorin wählt dabei einen methodischen Zugriff auf mittlerer Abstraktionshöhe, der es ermöglicht, sowohl die konkrete Rechtsprechungspraxis zu berücksichtigen, als diese auch mit abstrakten, vornehmlich demokratietheoretischen Einwänden zu konfrontieren. Durch eine radikale Reduktion derjenigen Faktoren, die nach überkommener Auffassung für Übung und Umfang richterlicher Zurückhaltung maßgeblich sind, wird die Margin of Appreciation im Ergebnis entschieden verschlankt und rationalisiert.'

Saturday, 3 March 2018

The Draft Copenhagen Declaration - Comment Series VI

We close this week's guest commentaries on the draft Copenhagen Declaration with the contribution of Sarah Lambrecht, one of the editors of the series. I thank both her and co-editor Janneke Gerards for this important initiative!

Undue political pressure is not dialogue: The draft Copenhagen Declaration and its potential repercussions on the Court’s independence

Sarah Lambrecht, researcher, Research Group Government and Law, UAntwerp and law clerk at the Belgian Constitutional Court (1)

The Danish Government wishes to initiate a renewed discussion on the future of the European Convention on Human Rights system, as one of its priorities of the Danish Chairmanship of the Committee of Ministers of the Council of Europe from November 2017 till May 2018. Before issuing its draft Copenhagen Declaration on 5 February 2018, the Danish Government hosted a High-Level Expert Symposium ‘The Future of the European Court of Human Rights – Time for a Renewed Discussion?’ on 20-21 April 2017 at Copenhagen, at which I participated, and a High-Level Expert Conference ‘2019 and Beyond – Taking Stock and Moving Forward from the Interlaken Process’ on 22-24 November 2017 at Kokkedal. This process has been particularly transparent, a stark contrast from previous efforts, for which the Danish Government should be commended.

Danish Government’s proposal to ‘rebalance’ the Convention system and enhance the position of States Parties

One of the key issues presented for discussion by the Danish Government is the need for ‘rebalancing’ the power between the States Parties and the European Court of Human Rights (the Court) by adjusting existing mechanisms and possibly introducing additional ‘checks’ on the Court. Several of these initial ideas have been cast in the draft Declaration published by the Danish Government, particularly, but not exclusively, in the section ‘Interplay between national and European levels – the need for dialogue and participation’. 

Four ways for States Parties to have a ‘stronger interplay’ with the Court are suggested by the draft text: (1) States Parties should be able to indicate their support for the referral of a Chamber case to the Grand Chamber (paras.  35 and 38), (2) States Parties should increase their third party interventions, especially in important and principled cases before the Grand Chamber  (paras. 34 and 39-40), (3) States Parties should discuss the general development of areas of the Court’s case law of particular interest to them and, if appropriate, adopt texts expressing their general views (paras. 32-33 and 41), (4) States Parties should hold a series of informal meetings to discuss relevant developments in the jurisprudence of the Court (para. 42).

With the exception of the call on States Parties to intervene more often, these are new mechanisms that aim to enhance the position of States Parties in the Convention system. Presented as a way to improve dialogue and participation, these proposals go in fact much further. As in any judicial system, enhancing the position of one of the actors, in this case (the executive branch of) the States party to the Convention, can have a significant impact on the system as a whole. Such a step should not be taken lightly. In past reforms of the Convention system, the focus has been primarily on enhancing the position of the individual applicant seeking redress for a rights violation by a State Party. In more recent years, several reforms or initiatives have aimed at establishing a more structured and effective dialogue between the Court and national courts. The value of such a dialogue was underscored in both the Brighton and Brussels Declaration, and it was given further shape, amongst others, in Protocol No. 16. When this Protocol comes into effect, the highest courts and tribunals of the ratifying States Parties can request the Court to give advisory opinions on question of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or its Protocols. In 2015, the Court also created a Superior Courts Network to enrich dialogue and the implementation of the Convention by creating a practical and useful means of exchanging relevant information, with the national superior courts, on Convention case law and related matters. 

Although the draft Declaration does reaffirm the States Parties’ strong attachment to the right of individual application to the Court as a cornerstone of the Convention system (para. 1), as well as welcomes the coming into effect of Protocol No. 16 and the Court’s creation of the Superior Courts Network (para. 37), the objective of the Danish Government is evidently more far-reaching, and in some regards of a different nature. In its opinion on the draft Declaration, the Court justly signals that ‘dialogue within the Convention system is underlined in the draft text, although in a broader sense and with a different emphasis than in the past’ (para. 15). Tellingly, the Court subsequently underlines ‘that in relation to the development of its case law, the appropriate mechanisms for dialogue take the form of domestic court decisions and third party interventions before the Court’ (para. 16).

States Parties support for the referral of a Chamber case to the Grand Chamber

A way envisaged early on by the Danish Government to strengthen the position of States Parties, is to allow States Parties to demand or at least indicate their support for the referral of a Chamber case to the Grand Chamber. This would create an institutionalized mechanism whereby States Parties would be able to challenge specific Chamber judgments. Rather than proposing a new Protocol, the Danish Government in its draft Declaration ‘invites the Court to adapt its procedures so that other States Parties may indicate their support for the referral of a Chamber case to the Grand Chamber, and to take such support into account when determining whether the conditions of Article 43(2) of the Convention have been met’ (para. 38).

The procedure for referral to the Grand Chamber, as defined in Article 43 of the Convention, is the result of a compromise codified in Protocol No. 11 between the States that emphasized the need for a single Court and those that favored a two-tier system. In order to ensure the quality and consistency of the Court’s case law, the Grand Chamber, at the request of one of the parties to the case and in exceptional cases, is competent to re-examine a case if the case raises serious questions concerning the interpretation or application of the Convention or its Protocols, or if the case raises a serious issue of general importance. The intention is that these conditions are applied in a strict sense. A panel of five judges of the Grand Chamber decides on whether a case is to be accepted for re-examination.

Article 43 of the Convention therefore does not provide for the specific mechanism suggested by the Danish Government. One can question whether it is appropriate to ‘invite’ the Court to alter its own procedures, especially when this initiative does not stem from a request by the Court, nor receives its clear support. Regardless, under no circumstances should such a mechanism be adopted without first thoroughly examining its potential effects on the functioning of the Convention system as a whole. It is not far-fetched to imagine that this mechanism could be used as a tool to politicize the procedure for referral to the Grand Chamber and to exert pressure on the Court to reverse certain Chamber judgments. Such a mechanism might be used by a group of States Parties to systematically challenge certain types of Chamber judgments, particularly those that are politically unwelcome. This could have negative repercussions on the Court’s independence. Particularly striking in this regard is that the draft text proposes that only other States Parties would be able to indicate their support for the referral of a Chamber case to the Grand Chamber. A clear choice was made to not include any other stakeholders, such as individual applicants that have similar cases pending before the Court or potential third party interveners. Solely the procedural position of the States Parties would thus be enhanced. While negotiating the shape and content of the final Copenhagen Declaration, the States Parties therefore need to carefully consider whether they wish to institutionalize such an unbalanced ‘semi-appeal’ mechanism, even if it is more moderately worded than previously circulating ideas. 

Moreover, the draft Declaration justly stresses that the Court’s caseload continues to give cause for serious concern (para. 43). It even cites an updated analysis of the caseload challenge, which concludes that ‘the Court has the capacity to deliver judgments in a maximum of 2.000 substantive (Chamber and Grand Chamber) cases per year’, while the ‘number of pending cases vastly outnumbers that’ (para. 44). In addition, there is ‘the major influx of cases seen in recent years due to the situation in some States’ (ibid.). No supplementary resources are, however, foreseen for the additional workload the proposed mechanism would entail. 

This of course does not mean that States Parties have no means available to make their views heard on certain developments in the case law. As indicated by the Court in its opinion on the draft Declaration, the mechanism of third party interventions before the Court ‘can be relevant to different stages in the examination of a case by the Court, including the admissibility stage, the stage of seeking referral of a case under Article 43 of the Convention, and ultimately that of the Grand Chamber’s consideration of the case’ (para. 16). In this series, Lize Glas demonstrates that despite the fact that third party interventions allow States Parties to directly engage in a dialogue with the Court, States Parties barely make use of this unique possibility.   

States Parties discussing the general development of the Court’s case law and adopting texts expressing their general views

The draft Declaration published by the Danish Government also ‘encourages States Parties to discuss the general development of areas of the Court’s case law of particular interest to them and, if appropriate, adopt texts expressing their general views.’ ‘Such discussions, as well as possible texts adopted’, the draft Declaration continues, ‘may be useful for the Court as means of better understanding the views and positions of States Parties’ (para. 41). In addition, ‘in continuation of the 2017 High-Level Expert Conference in Kokkedal, as a pilot project, […] a series of informal meetings of States Parties before the end of 2019’ should be held, ‘where relevant developments in the jurisprudence of the Court can be discussed, with input of other relevant actors’. These meetings would be organized and hosted by the Danish Chairmanship (para. 42). 

The draft Declaration remains very vague about important specifics of these proposals. In what framework would these discussions by States Parties on the general development of areas of the Court’s case law take place? What would be the nature, the form and the legal basis of the adopted texts expressing their general views? By which procedure would these texts be adopted? None of this is clarified. Therefore, it is very difficult to fully assess the implications of such proposals, which evidently go further than the ‘appropriate mechanisms for dialogue’ identified by the Court in its opinion on the draft text (para. 16). This is particularly worrisome because it is clear that these proposals could have severe repercussions on the Court’s independence. Simply adding that ‘such discussions should respect the independence of the Court’ (para. 41), hardly suffices.

One can merely speculate as to whether the aim of the Danish proposal is to expand the role of the Committee of Ministers, or rather to create another type of forum for discussions by the States Parties. Perhaps the proposals are an allusion to a highly controversial suggestion made by some critics of the Court’s interpretation of the Convention (note 2).  They propose that agreements between States Parties should be made in the framework of the Committee of Ministers regarding the interpretation of the Convention or the application of its provisions. Basing themselves on Article 31(3) of the Vienna Convention on the Law of Treaties, these agreements would then need to be taken into account or simply followed by the Court. Such a reform seems entirely incompatible with the Convention system’s purpose and the Court’s mandate as defined in Articles 19 and 32 of the Convention as well as its independence.

Regardless of whether such discussions and the adoption of texts would take place in the framework of the Committee of Ministers or be organized outside of the traditional bodies of the Council of Europe, it is not difficult to see how this is not an appropriate mechanism for (enhanced) dialogue. Instead, it is a potentially dangerous tool to exert undue political pressure on the Court by the very actors that are subject to its supervision. Important to emphasize is that the European Court of Human Rights is a court first and foremost. For the Court to perform its supervisory role properly, and provide effective protection of fundamental rights of individuals, the Court’s independence needs to be secured. One of the reasons why ‘the Convention system has made an extraordinary contribution to the protection and promotion of human rights and the rule of law in Europe since its establishment’ and that ‘today it plays a central role in maintaining democratic security and improving good governance across the Continent’ (para. 2), is precisely because the States Parties ensured the Court could operate in full independence. 

Again, this does not mean that States Parties have no means available to increase their dialogue with the Court and to enhance their influence on the development of the Court’s case law. In fact, as mentioned, the draft Declaration already points to an existing, underused mechanism: third party interventions before the Court (paras. 34 and 39-40). In its opinion on the draft Declaration, the Court also notes ‘that this mechanism of engagement by States with the Court’s judicial function does not appear to be used to its fullest potential and that, once Protocol No. 16 has entered into force, this mechanism may become even more significant’ (para. 16). As cited above, the Court underlines that in relation to the development of its case law, third party interventions before the Court as well as domestic courts decisions are the appropriate mechanisms for dialogue (ibid.). Moreover, one must not lose sight of the fact that it is the States Parties who select and elect the judges of the Court that interpret the Convention. It is their responsibility to improve this process (paras. 63-69) and ‘to ensure that the judges of the Court enjoy the highest authority in national and international law’ (para. 62).


The draft Declaration issued by the Danish Government primarily aims to strengthen the position of the States Parties in the Convention system. If not fundamentally altered, this will most likely have an impact on the other stakeholders, in particular the individuals that claim to be the victim of a rights violation by a State Party. In contrast to the Brussels Declaration and even the Brighton Declaration, the overall emphasis has moved away from the urgent matter of better national implementation of Convention rights and the execution of judgments, as already mentioned in the opening contribution of this series. Especially at a time when there is a clear regression of the rule of law in several States Parties, the lack of a strong agenda on this issue is highly problematic. This should be rectified in the final Declaration.

It is doubtful, in contrast to what the draft Declaration implies, that the above-discussed new proposals will create the setting for ‘a well-functioning interplay between the national and European levels’ (para. 31). Hopefully, the States Parties will take their time to carefully analyze the proposals set forth by the Danish Government, and their potential repercussions on the Court’s independence. To end with a positive note, one proposal in the draft text that could prove to be a mutually beneficial mechanism for dialogue, if used properly, are increased interventions by States Parties. They could also function as an appropriate means to channel potential tensions between the Court and States Parties. Rather than introducing new and highly contentious mechanisms, the High Level Conference in Copenhagen could be an occasion to highlight the proper ways for States Parties to engage via third party interventions with the Court and to elaborate on how it could be further utilized to enhance dialogue between States Parties and the Court. 

Note 1:  Please note that the views expressed here are personal to the author.
Note 2: See e.g. T Zwart, ‘Een steviger opstelling tegenover het Europees Hof voor de rechten van de Mens bevordert de Rechtsstaat [A stronger position against the European Court of Human Rights advances the Rule of Law]’, Nederlands Juristenblad (2011) 415, 417; K Dijkhoff and S Blok, ‘Leg het Europees Hof aan banden [Curtail the European Court]’ De Volkskrant (7 April 2011);  C Maas, ‘International law as instrument or objective in itself? Case study: juridification and the European Convention on Human Rights’ in: C Maas (ed), Juridification in Europe: The balance of powers under pressure? (European Liberal Forum 2012), available on , (97) 105. 

This blog comment was posted earlier on the Strasbourg Observers blog. 

Friday, 2 March 2018

The Draft Copenhagen Declaration - Comment Series V

In this fifth episode, I am adding my own comments to the discussion on the draft Copenhagen Declaration, focusing on the role of civil society organizations.

The Draft Copenhagen Declaration - What About Civil Society?

Antoine Buyse, professor of human rights from a multidisciplinary perspective, Utrecht University, the Netherlands

The very existence of this critical comment series on the draft Copenhagen Declaration of the Danish chairmanship of the Council of Europe shows that the recent publication of the draft was enough to elicit a stream of responses. This possibility for open discussion is to be applauded and certainly a big improvement over the earlier discussion surrounding the Brighton Declaration of 2012, over which debate was only possible after the text was leaked. Indeed the intensity and concerns palpable in the current responses show that the contents of the draft are not warmly welcomed by everyone. Some very esteemed colleagues, with supporting reasoning, even relegate the whole draft back to the drawing board.

Is there then something rotten in the Kingdom of Denmark, as the palace guard in Hamlet would have it? Or is the current online debate on blogs just a more public reflection of the diplomatic debates behind closed doors which have been ongoing for several months now among Council of Europe member states? One clear advantage of this relatively open phase is that civil society can more easily chip in. This comment focuses on the role  and arguments of civil society in the run-up to the high-level conference in Copenhagen in April

As Janneke Gerards and Sarah Lambrecht noted in their opening contribution of this series of comments, the earlier declarations of Interlaken, Izmir, Brighton and Brussels all expressed support for the Convention system, but to different degrees. The differences, not only in the texts themselves, but also in the underlying intentions and purposes, are precisely what matters here. While the high caseload for the Court and the changing attitudes towards its work may both have triggered the flurry of reform activity leading to no less than four (and the fifth, Copenhagen one, upcoming) declarations in this decade alone, it is their tone and political context that are the keys to understanding them.

Indeed, domestic discussions within the ECHR State Party chairing the Committee of Ministers of the Council of Europe at the time of a particular declaration heavily influence both timing and content. Denmark is no exception, as Jacques Hartman explained earlier in a comment, also noting the sometimes very large discursive influence a single judgment can have on domestic debates. In that sense, keen observers of the Strasbourg system were not surprised that the draft Brighton Declaration in the past and the draft Copenhagen Declaration currently, emanating as they do from relatively ‘Strasbourg-sceptic’ governments – elicit rather critical responses and concerns from academics, civil society and more ‘Strasbourg-friendly’ state parties.

Civil society involvement

Notably, the Danish chairmanship openly called for civil society involvement. Its short document on priorities mentions civil society no less than five times, including when it calls for “strengthened dialogue on developments in the Court’s jurisprudence; a dialogue in which civil society should also play a key role.” If we see the draft Copenhagen Declaration as a kick-off by the Danish government, then civil society certainly seized the ball. But maybe not in the direction the Danes were hoping for. Indeed, six non-governmental organisations that were invited to participate in the November 2017 Kokkedal expert conference of the Danish government soon after issued a statement that breathes an air of concern. The statement expressed regret that the discussions once again focused on “the functioning and methods of the Court rather than on meeting existing legal and political commitments on national implementation.” It also a cautioned against interpretations of “enhanced dialogue” (a term of the Danish chairmanship that somewhat unluckily echoes that other infamous use of “enhanced” in international law, in the context of interrogations in the fight against terror) that would hamper the European Court’s independence.

The six, amongst them Amnesty International and the International Commission of Jurists, were joined by two additional civil society organisations when issuing their recent “Joint NGO Response to the Draft Copenhagen Declaration”. The response could be summarized in two main points: the draft Declaration is imprecise in its analysis and description of the situation and it targets the wrong problem.

Tone and target

As to the imprecisions, the reaction of the NGOs almost reads as that of an all-knowing headmaster correcting its stubborn, shoddy student – and very often for good reasons. The text of the response is full of criticism of the draft Declaration for mischaracterizing processes, overstating issues, undermining the Court and creating confusion (e.g. between the notion of subsidiarity and the margin of appreciation). From a sociology-of-law perspective, this may be explained by the fact that several of the leading figures in these NGOs are also some of the best academic experts on the Convention system. They justifiably demand from the diplomats and civil servants who wrote the text to at least get their facts right and to be intellectually candid. At the same time, the lack of precision and coherence in the Draft could be explained by the fact that the text is already a compromise in the making within the Danish government and influenced by earlier diplomatic demarches of several other state parties. Nevertheless, the NGOs have a point. A large part of their response is, as a result, moulded in the form of very specific textual suggestions to improve the text. How very different is this openly critical and correcting tone from the more subdued, diplomatic wording of the European Court’s own reaction to the draft, which is worded more as a gentle but critical reminder of the Court’s own case-law and a kind demand for clarification of some of the more far-reaching ideas before they can be analysed. To each their own role and tone, and rightly so.

As to the targeting of the key problem at stake, the NGO response argues that the while the draft Copenhagen Declaration acknowledges that national implementation of the ECHR is important, the emphasis seems to be on what could be improved in Strasbourg rather than at home. And that very emphasis, in the NGOs’ view is putting too much attention to a less urgent problem. Much progress in efficiency and quality has been made within the Court. It is the persistent and systemic problems within states that call for attention, including the lack of timely and full implementation of Strasbourg judgments. Indeed, much of the draft Declaration talks about a better “balance” between the European and national levels. The underlying thought seems to be that the Court needs to give more room to national sovereignty – the draft talks of the importance of “constitutional traditions” and “national circumstances”. The Court should be recalibrated in a new balance of power, the draft seems to say.

By contrast, the NGOs argue that the new balance should be rather one of taking responsibility – the Court is doing what it can, the states themselves should take the Convention norms more seriously. Here, the problem analysis of the situation by civil society organisations in the response is in line with what the Parliamentary Assembly of the Council of Europe has been highlighting year after year: national implementation of the Convention is the key problem. And this should be done across the board. Rather than weakening or taking away jurisdiction of the Court on matters of asylum or international armed conflicts in order to make the Court’s caseload more workable, the influx of cases should be reduced by addressing problems at the national level. To put it differently: improving protection for human rights victims and preventing violations, rather than sounding the Strasbourg alarm bell for only some problems and not for others.

If indeed, as the NGO response argues, more emphasis should be put on national implementation of Convention norms, then the role of civil society should be strengthened, to begin with in the wording of the draft Declaration. The organizations behind the response call for the development of more effective implementation by engaging civil society. The concern in the response about the role of civil society at the national level, within states, is not just one of principle. It is also very much a practical challenge: in many countries across the globe, including within Europe, civic space is under heavy pressure and the work of civil society is made increasingly difficult. This in turn affects the room for manoeuver NGOs have to help victims of alleged human rights violations to lodge applications in Strasbourg. An important signal would thus be to include in the Copenhagen Declaration the crucial role of civil society in human rights protection and promotion at the national level and the need for an enabling environment for their work.

Civil society in Strasbourg

The response also addresses the role of civil society itself in Strasbourg. Here the main point the NGOs make is that the Court’s independence should be protected and bolstered above all. Political influencing by states – under the cloak of “dialogue” – is anathema. State interventions in the Court’s work should be entirely limited to existing procedures, whether in their role as defendant states in a particular case or as third party intervener. If more possibilities for states are created for states to give input in proceedings, then the same should be possible for others, including civil society, the NGOs argue. The NGOs note a point that is also to be found in the Court’s own reaction to the Copenhagen draft: these is a lot of room for third party interventions already. As the Court, again diplomatically, states in its opinion, this option “does not appear to be used to its fullest potential” (para. 16).

As to another element of the procedures in Strasbourg, as Lize Glas noted in one of the earlier comments in this series, in the context of decisions of referral to the Grand Chamber, it would make sense to open the door for involvement of civil society and not limit it to states. Again, this would follow from the overall professed logic of the Danish chairmanship of giving a key role to civil society. A matter of putting your money – or in this case, political commitment and action – where your mouth is.


The input of civil society in the current debates deserves to be taken very seriously. Not only because this input reflects the explicit goal of the Danish chairmanship to involve civil society, but also because civil society organisations are key players in the Convention system. All of the organisations behind the joint NGO response are very active in Strasbourg, whether it is in strategic litigation (EHRAC) or in implementation of judgments (EIN). And, of course, these international NGOs also voice concerns of a much wider circle of civil society actors. It is after all domestic human rights organisations that may themselves become victims of violations when trying to help individual victims or when being “social watchdogs”, as the European Court itself has put it, to hold authorities to account.

The response in the dialogue in Hamlet to the famous phrase about rottenness in Denmark is that “heaven will direct it”. In the current context, in a rather more mundane version, it may not be heaven but the chorus of voices on earth being crucial. The current series hopes to add some useful notes to those voices.

This blog comment was posted earlier on the Strasbourg Observers blog. 

Thursday, 1 March 2018

The Draft Copenhagen Declaration - Comment Series IV

Building on the earlier contributions, in today's fourth episode, my Utrecht colleague Janneke Gerards comments on the different roles the Courts has played and can play and how that should be reflected in the draft Declaration:

The draft Copenhagen Declaration and the Court’s dual role – the need for a different definition of subsidiarity and the margin of appreciation 

Janneke Gerards, Professor of fundamental rights law, Utrecht University, the Netherlands 

The double-faced role of the Court

One of the recurring topics in all High Level Declarations is the role the European Court of Human Rights (ECtHR or Court) should play in protecting the Convention rights. Article 32 of the Convention stipulates that the Court’s jurisdiction extends to ‘all matters concerning the interpretation and application of the Convention and the Protocols thereto’. The meaning of this provision has always remained somewhat ambiguous. On the one hand, the importance of the Court’s offering individual redress to victims of Convention rights violation has been stressed over and over again (not in the least in the Interlaken Declaration). On the other hand, the Convention’s Preamble discloses that the Convention was originally regarded as a first step towards the ‘collective enforcement’ of human rights. Apparently, offering general protection against human rights violations was considered an important objective, too. In line with this ambiguity, the Court accepted already in 1978 that under Article 32, its task is ‘not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention’. Indeed, the Court is not only famous for its offering of individual justice, but also for its development of hugely influential general doctrines, varying from the ‘pressing social need test’ to the autonomous definitions of notions such as a ‘tribunal’ or ‘property’. In this regard, the Court even can be said to have important features of a constitutional court. 

It is not clear which of these two functions – offering individual justice or providing for interpretative guidance – is the more important one. Perhaps it is best to say that the Court has a dual role to play, as De Londras has done in 2013. Indeed, the duality of the Court’s role agrees very well with the overall set-up of the Convention system, as the Court explained in its own response to the draft Declaration. The general standards and principles defined by the Court in its constitutional role help national courts decide on fundamental rights cases. In addition, proper implementation of such standards by national legislators and administrative bodies may prevent Convention rights violations from occurring. General standard-setting by the Court thus enhances the States’ fulfilment of their primary responsibility in respecting and protecting the Convention. The Court’s other role—its task of offering individual protection—then mainly comes into play if States have not sufficiently respected the Convention rights. In that case, the Court acts as safety net and it may provide for individual justice.

Definition of primary and subsidiary tasks in previous Declarations

Accordingly, it is an important task of the Court to define the minimum level of protection that the States must guarantee. In line with Article 32 ECHR, the Court must take the lead in defining core Convention terms and concepts, in setting and refining relevant standards and criteria, and in clarifying how these can be applied in case of doubt. In this respect, the Court plays a primary role. The notion of subsidiarity only comes into play with regard to the application of such standards in individual cases. 

Seemingly, this nuanced definition of the subsidiarity principle is embraced by the authors of the draft Copenhagen Declaration. The draft Declaration clearly stipulates that the Conference ‘welcomes that the Court … [provides] important incentives for national authorities properly to fulfil their Convention role’ (para. 27). At the same time, it states that ‘States Parties enjoy a margin of appreciation in how they apply and implement the Convention’ (para. 23). It also emphasises that ‘if a genuine balancing of interests has taken place at the national level, it is not the Court’s task to conduct the proportionality assessment afresh’, and that ‘the Court should not act as a court of fourth instance’ (para 24). The draft Declaration thereby seems to accept that the Court is to play a primary, constitutional court-like role in setting and refining general standards for the interpretation of the Convention. This acceptance is in line with statements and proposals made in earlier Declarations. For example, the Interlaken Declaration stressed the importance ‘of ensuring the clarity and consistency of the Court’s case-law’ (para. 4), while the Brighton Declaration emphasised that the Court should be put in a position to focus on ‘important questions of interpretation and application of the Convention’ (para. 33). To this end, the Izmir and Brighton Declarations also supported the introduction of an advisory opinions procedure. The effect of such a procedure (now laid down in Protocol No 16) will be that the Court can provide general interpretations of the Convention and clarify the applicable standards, even pending national highest courts’ proceedings.
Non-acceptance of the consequences?

The various High Level Declarations suggest that the States agree with the primary constitutional role played by the ECtHR. Logically, this can only mean that they accept the general standard-setting by the Court and that they agree that they have to implement these standards and interpretations in their own national legislation, decisions and case-law. However, it is at this point that many national politicians and national media appear to show some hypocrisy. In fact, the Court is often criticised for not sufficiently respecting its proper position within the Convention system, as defined by the principle of subsidiarity. Interestingly, in most cases, this criticism does not concern an overly strict review of a national court’s concrete balancing exercise, or its acting as a ‘court of fourth instance’, as the draft Declaration seems to suggest in para. 25. Usually, the criticism goes to the very heart of the general standards developed by the Court. It pertains, for example, to the principles the Court has defined to strike a balance between state neutrality and freedom of religion; to standards regarding the personal scope of the right to vote; to guarantees that generally should be provided when hearsay evidence is dealt with; or to general procedural guarantees that should be offered in relation to decisions on life imprisonment. 

Although the States thus seem to embrace the Court’s constitutional role and even appear to want to enhance its function of standard-setting, apparently they do not like to accept the consequences of this. But they cannot have their cake and eat it, too. Either national politicians have to accept that the Court is exercising its primary task of interpreting the Convention, even if its standards may be controversial, or they need to reject the Court’s interpretative and constitutional role altogether, and by doing so, accept they are striking at the very roots of the Convention system. 

The margin of appreciation doctrine and variable intensity of review

It would be much more in line with the Convention system’s design if the States were to accept that the principle of subsidiarity really only concerns the application of the general standards to concrete cases. This also would be in agreement with the function of the margin of appreciation as it was originally conceptualised. In that conceptualisation, the margin of appreciation is a tool for variation of the intensity of review in concrete cases, much comparable to doctrines of deference or judicial restraint used by national administrative courts. 

Indeed, the Court has consistently held that the scope of the margin of appreciation is variable; in some cases it may be wide, in other cases it will be narrow. It will determine the scope of the margin based on a number of factors it has defined in its case-law, such as the nature of the Convention right in issue, its importance for the individual, the nature of the interference, and the object pursued by the interference (see e.g. S and Marper v the United Kingdom, para. 102). The margin tends to be narrow if a concrete interference with a fundamental right goes to the very core of an important right or freedom or if an interference is very serious and far-reaching in nature (idem). After all, if such important aspects of rights have been affected, an a priori suspicion may arise with the Court that the competent authorities have not sufficiently respected the Convention standards. It is then fully reasonable that the Court takes a close look at the reasonableness of exactly this interference in this particular case. This may be different if an interference relates to more peripheral aspects of rights, if it is not particularly serious, or if the national authorities are better placed to estimate the necessity and proportionality of a concrete decision or a concrete piece of legislation. In those cases, there is less reason to be suspicious of the national decision or the national legislation, and therefore the Court can reasonably exercise judicial restraint.

Admittedly, this is not how the Court always uses its margin of appreciation doctrine. A qualitative analysis I have made of a large body of recent case-law discloses that the Court’s references to the doctrine are usually rhetorical rather than substantial, in that the margin of appreciation is only rarely directly connected to the intensity of the Court’s scrutiny (J.H. Gerards, ‘Dealing with Divergence. Margin of Appreciation and Incrementalism in the Case-Law of the European Court of Human Rights’, Human Rights Law Review (2018, forthcoming). Thus, where the authors of the draft Declaration state that ‘the Court has engaged in a process of more robustly applying the principle of subsidiarity and the margin of appreciation in its case-law’, it is probably this almost ritual incantation they are referring to. 

At the same time, my case-law analysis also disclosed that the Court does vary the intensity of review according to the facts and circumstances of each individual case and that it does exercise judicial restraint. It only does do so in a different way than by actually using the margin of appreciation doctrine in its intensity-determining function. The Court’s preferred approach to show deference to the national authorities appears to be to apply its general standards in a highly individualised manner to the facts of a concrete case. In doing so, it takes account of the specific context, of the amount of procedural due care taken on the national level, and of what is at stake for the applicant and for the respondent State. The Court thereby clearly leaves leeway to the States in ‘how they apply and implement the Convention’ (draft Declaration, para. 23). It thus acts in full agreement with its subsidiary position, as the Court has stressed in its response to the draft (para. 13), but usually without actually using the margin of appreciation doctrine.

Rewriting the draft Copenhagen Declaration

Given the above, the draft Declaration does not realistically reflect the foundations of the Convention system, the meaning of the notion of subsidiarity and the actual use of the margin of appreciation doctrine by the Court. If any attention at all is paid in such a declaration to what the Court ought to do and how the Court ought to behave (which is controversial because of the independent position of the Court), it would be better, firstly, to expressly recognise the Court’s primary role in standard-setting and interpretation of the Convention, which it exercises based on Article 32 of the Convention. Secondly, it would be important to stress that it is part of the States’ responsibility to accept these general standards and apply them in their case-law, administrative decisions and legislation. Thirdly, it could be mentioned that the principle of subsidiarity should guide the Court in its concrete application of these general standards to the facts of individual cases, but it should also be expressly accepted that this very principle entails that it is still the Court’s task to see if the States have sufficiently fulfilled their obligations. It should be accepted that it is fully reasonable for the Court to take a closer look at a justification in a concrete case if there are indications of the contrary, and it is up to the Court to see whether such indications are present. It is also up to the Court to decide how the principle of subsidiarity can best be respected and when and how it should exercise judicial restraint. Only such recognitions would really do justice to the dual role of the Court, which forms the very core of the Convention system.

This blog comment was posted earlier on the Strasbourg Observers blog. 

Wednesday, 28 February 2018

The Draft Copenhagen Declaration - Comment Series III

The third episode in our series on the draft Copenhagen Declaration focuses on process-based review and was written by my Utrecht colleague and SIM fellow Leonie Huijbers:

The Draft Copenhagen Declaration – Process-based review and subsidiarity

Leonie Huijbers, PhD Candidate, Utrecht University

With the publication of the list of priorities for the Danish Chairmanship in November 2017, it became publicly clear that the Danes would push for yet another debate on the future of the Convention system. According to the Danish Chairmanship, such a debate is needed because ‘support’ for the Convention system is diminishing and the authority of the Court is (actively) questioned by European citizens and national policy-makers. Ironically, the Danes themselves were faced with a lack of support for their plans to engage in another round of reform deliberations. The Council of Europe bodies appear to be a little tired of all the reforms and have questioned the usefulness of new reforms. Indeed a 2015 CDDH-report states that the challenges faced by the Convention system requires ‘allocating additional resources and more efficient working methods rather than introducing a major reform’ (p. 10). Nevertheless, to garner, as well as test, support for their ideas, the Danes organised a High-Level Expert Conference in Kokkedal, Denmark in November 2017 before reaching the current draft Copenhagen Declaration. Various actors were invited to participate in the Conference, not only politicians and statesmen, but also judges of the ECtHR and domestic courts, as well as academics and representatives of NGOs. 

One topic in the draft Declaration suggests that perhaps the participation of particular participants in the Kokkedal Conference has had a strong influence on the draft’s authors. This topic concerns the references to the principle of subsidiarity and the Court’s process-based review in the draft under the heading ‘European supervision – the subsidiarity role of the Court’ (paras. 22-30). The terminology used therein is reminiscent of the ideas expressed by Robert Spano, the ECtHR judge for Iceland, who also spoke at the Kokkedal Conference. Spano’s speech was entitled ‘The Future of the European Court of Human Rights – Subsidiarity, Process-Based Review and the Rule of Law’ (further elaborated in a forthcoming article in the Human Rights Law Review). In addition, the draft Declaration mentions that ‘the Court has engaged in more robustly applying the principle of subsidiarity and the margin of appreciation’, which reminds of the notion of ‘robust subsidiarity’ in an article by Spano published in 2014. Perhaps even more interesting is the question whether the proposals in the draft concerning the principle of subsidiarity and process-based review would indeed aid the Court in its work, or whether they mainly aim to limit the Court’s competences.

Political and Judicial Support for Process-based Review

Firstly, what is exactly meant by process-based review or procedural review? These notions refer to the focus of the Court on the decision-making processes of national legislative, executive and judicial authorities for determining whether a substantive right has been violated. It is generally considered that the Court is increasingly applying this approach, not only in cases concerning Articles 8 and 10 ECHR (see the Court’s background paper of 2015), but also in relation to, for example, Article 11 ECHR (for example, Öğrü and Others v. Turkey) and Article 3 Protocol 1 ECHR (see for example, Hirst v. UK (No. 2)). This procedural approach features, most prominently in paragraph 24 of the draft Declaration, which states:
‘where domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and the Court’s case law, and adequately balanced the interests at stake, it is not for the Court to substitute their assessment with its own, unless it has identified strong reasons for doing so’ (para. 24). 
The draft Declaration clearly supports such a procedural approach. The Court and the politicians therefore seem to be in tune with one another. Also within the Court, there appears to be a relatively widespread support for this approach. Even though not all judges are openly advocating this approach, as Judge Spano has done, it is clear that the approach has been applied in various judgments of the Grand Chamber. The formulation mentioned above also has been reiterated in quite a large number of Chamber judgments (already 67 judgments and decisions appear if one searches for (“substitute” NEAR “strong reasons”) in HUDOC). 

The quotation made in the draft Declaration refers to the famous Von Hannover v. Germany (No. 2) judgment, in which the Grand Chamber of the Court confirmed the approaches taken in MGN Limited v. the UK (paras. 150 and 155) and Palomo Sánchez and Others v. Spain (para. 57). In Von Hannover the Court, however, phrased its approach a bit more delicately than the draft Declaration does: 
‘Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts.’ 
This blog argues that these differences in wording are rather significant and may even be crucial for the further development of the Court’s process-based approach. 

Misinterpretations of the Court’s process-based approach

Firstly, concerning the obligation for national authorities to carry out a balancing exercise in light of the Convention and the Court’s case law, the draft Declaration lowers the threshold. Whilst the Court emphasised the need for domestic courts to conform with the Convention standards, according to the draft Declaration it is sufficient if they apply human rights standards, whether national or international, and do so in a way that is consistent with the Convention standards. The draft Declaration therefore replaces the Court’s requirement of compliance and conformity with one of application and consistency. In combination with paragraph 14 of the Declaration, which mentions that human rights are ‘being protected predominantly at national level by State authorities in accordance with their constitutional tradition and in light of national circumstances’, this may easily reduce the level of protection of fundamental rights the Court would need to provide.  

Secondly, the draft Declaration appears to connect the Court’s procedural approach in a one-sided manner to the principle of subsidiarity and the margin of appreciation. Where the Court in the Von Hannover judgment held that it requires strong reasons to substitute its view for that of the domestic courts, the draft Declaration phrases this in a more negative manner. It states that ‘it is not for the Court to substitute [domestic courts’] assessment with its own, unless it has identified strong reasons for doing so’ (para. 24). The draft also mentions that ‘[i]f a genuine balancing of interests has taken place at the national level, it is not the Court’s task to conduct the proportionality assessment afresh’ (para. 24), and that the Court ‘should not take on the role of States Parties’ (para. 22). The draft Declaration therefore suggests that the Court’s task is not to look into the substantive proportionality of a measure or into the facts of a case (see also para. 25), when such an assessment has already been carried out by domestic courts. Only in very exceptional circumstance this would be different, i.e., in case the Court has been able to explicitly identify strong reasons that allow it to substitute the domestic courts’ view for its own. 

This concerns a misapprehension of how the Court’s procedural turn should be related to its subsidiary role. Although process-based review relates to the principle of subsidiarity, a more ‘robust’ application (para. 27) of that principle and the margin of appreciation neither means that the Court’s review is limited to a procedural assessment per se, nor that the Court can only step in when national authorities have flagrantly misapplied the Convention. Such a scenario would leave the Court’s review without any ‘bite’, as it would lower the protection provided by the Convention, and it would facilitate procedural ‘window-dressing’ by national authorities. In its case law, the Court has instead connected process-based review with the principle of subsidiarity in a way that allows for it to supervise the implementation of the Convention at the national level (in conformity with Articles 1 and 19 ECHR). It has done so by accepting process-based considerations as relevant factors for determining the scope of the margin of appreciation (see for a recent example Ndidi v. UK, para. 76). It should be stressed here that this is only one of the relevant factors, as also indicated in the Court’s opinion on the draft Declaration, and that it is for the Court to determine the margin afforded on the basis of several factors. 

Where the Court’s process-based review is linked with the margin of appreciation, it in fact works in two directions. The Court might grant a wide margin of appreciation to national authorities when they have carefully and adequately carried out a balancing exercise in accordance with the Convention and the Court’s case law – so if they have truly ‘brought human rights home’. If the national authorities have failed to carry out their task, however, the Court is likely to narrow the national authorities’ margin of appreciation. It will then strictly scrutinise the outcome of a decision, or even find a (procedural) violation of the right. In other words, process-based review does not mean less European supervision, it means sharing responsibilities through building trust between the Court and national authorities. 

A final concern worth mentioning relates to the way in which the draft Declaration portrays the Court’s approach concerning the national legislative and executive authorities. On the one hand, in relation to the Court’s process-based review, the draft focuses solely on the Court’s approach regarding national judicial decision-making authorities. However, in Animal Defenders International v. UK the Court clarified that its focus on national decision-making processes relates also to ‘the quality of the parliamentary … review’. Procedural review is thus also relevant in relation to parliamentary debates and evidence-based decision-making (see also, for example, Hatton and Others v. UK, Grand Chamber). On the other hand, insofar as the draft Declaration also refers to the responsibility of national legislative and administrative authorities, it does so only in a supervision reducing manner. Whilst the draft encourages national authorities to check ‘in a systematic manner and at an early stage of the process’ the compatibility of legislation and policies with the Convention (para. 20(b)), in light of the margin of appreciation it mentions that ‘States Parties enjoy a margin of appreciation in how they apply and implement the Convention’ and that ‘in matters of general policy … the role of the domestic policy-maker should be given special weight’ by the Court (para. 23). This seems to indicate that only positive inferences can be drawn by the Court on the basis of the national decision-making process. The Court’s approach, by contrast, aims to ensure that legislative and administrative authorities make rational choices respecting fundamental rights. If they cannot demonstrate reasonable decision-making, then closer scrutiny by the Court is warranted. The Court’s rationale thus appears to be that protection of fundamental rights is assured best at the national level if all national authorities take fundamental rights into account in their decision-making processes. After all, prevention is better than cure, even if the cure is given by domestic courts. 

Suggestions for the Copenhagen Declaration

To conclude, one could wonder whether the use of process-based review actually ought to be part of a political Declaration. As indicated in the Joint NGO response to the draft, ‘it is not for a political Declaration to seek to determine what and how judicial tools of interpretation, such as the margin of appreciation, apply’, since such is ‘the sole task of the Court’ (p. 6). Surely, caution is warranted, especially since the way in which the draft Declaration describes the Court’s process-based approach and its relationship with subsidiarity, does not relate to an enhanced effectivity of the Convention, but seems to limit the Court’s substantive supervision of the Convention. Robust subsidiarity therefore appears to be a tool of the Danes to weaken the Convention system, instead of sharing responsibility in a ‘better’ way. If process-based review and the principle of subsidiarity are to be included in the Copenhagen Declaration, it is paramount that the Contracting Parties find more appropriate wording to guarantee the effectiveness of the Convention as well as secure the independence of the Court, and ensure the potential of the Court’s process-based approach.

This blog comment was posted earlier on the Strasbourg Observers blog. 

Tuesday, 27 February 2018

The Draft Copenhagen Declaration - Comment Series II

We continue our comment series on the draft Copenhagen Declaration with a second contribution, by dr Lize Glas of Radboud University Nijmegen, on the 'dialogue' aspects of the draft text:

The Draft Copenhagen Declaration: ‘New Ways’ to ensure a ‘Strengthened Dialogue’? 

Lize R. Glas, assistant professor of European law, Radboud University 

When making public its priorities for its chairmanship on 13 November 2017, Denmark already announced that finding ‘new ways’ to ensure a ‘strengthened dialogue’ between the states parties, domestic courts and the Court would be a ‘key objective’. As could be expected therefore, the draft Copenhagen Declaration (Declaration) dedicates a special section to dialogue, entitled ‘Interplay between national and European levels – the need for dialogue and participation’. The dialogue should be mainly about ‘the general development of case law in important areas’ (para. 33, see also paras. 32, 41). Including a message about dialogue fits into a trend: whereas the first two ministerial declarations about the Court (adopted in 2010 and 2011) did not refer to dialogue, the two most recent declarations did. The Brighton Declaration (2012) encouraged ‘open dialogues’ between, among others, the Court and states parties. Comparably, the Brussels Declaration (2015) welcomed the Court’s dialogue with the highest domestic courts. 

In this blog, I analyse the three means by which dialogue with the Court should take place, as proposed by the Declaration. After all, the Danes announced that they would find new ways for engaging in dialogue with the Court. The Declaration nevertheless also refers to already existing channels through which dialogue can take place (para. 37): the Court’s Superior Courts Network and thematic discussions in the Committee of Ministers. Additionally, the document mentions Protocol 16, which, upon its entry into force, gives the highest domestic courts the possibility to request an advisory opinion from the Court. 

Intervening as a third party

State third-party are another possibility for dialogue. This possibility has existed since 1982. The Court is asked to ‘support increased interventions by States Parties’ (para. 39). I agree that interventions are a useful – albeit not a very new – way to engage in dialogue. Interventions are useful, because, as the Court has noted, its judgments establish precedents to ‘a greater or lesser extent’. Consequently, a judgment may be relevant to states other than the respondent state. Interventions make it possible to give input into a judgment to which the states may have to abide. The intervening states can, for example, inform the Court about the consequences that a certain decision will have for them. Furthermore, interventions can help the Court to establish whether consensus exists. Interventions are also way for the states to cooperate with the Court and to thus share responsibility with it; as the Declaration notes as well, protecting the Convention rights is a shared responsibility (para. 7). Finally, the states have hardly any means to directly engage in a dialogue with the Court when they are not the respondent state and interventions offer such a unique possibility. 

The Declaration calls upon the states parties to ‘increase coordination and co-operation on third party interventions, including by communicating more systematically through the Government Agents Network on cases of potential interest’ (para. 40). I would say that actually intervening should be an equally high or even higher priority. Research that I conducted into state third-party interventions (and on which I rely throughout this section) showed that there were only 59 cases with one or more interventions by states under Article 36(2) ECHR until 15 June 2016. The UK submitted a large number of interventions (23), whereas 15 states had never intervened. Denmark had intervened only once. The number of such interventions is very low, both compared to the number of interventions of NGOs and the total number of judgments adopted. A more far-reaching measure that the states could take would be to amend Article 36(2) ECHR to delete the requirement that states must request leave to intervene. In practice, the states already have a right to intervene based on that provision, because the Court does not refuse them leave to intervene. The Convention could therefore be amended to turn the de facto right into a de jure right and, thereby, remove a procedural obstacle to intervening.  

Above all, I would like to repeat what Paul Harvey, a lawyer in the Registry of the Court, wrote on about two years ago: 

‘the most effective third party interventions are those which respect the Court’s request not to comment on the merits of a case, those which do not seek to advance their own interests and, above all, those which, in good faith, seek to provide real assistance to the Court in its adjudicative task’. 

My research found that the states do not always respect this request and often just want to advance their own interests. The states can, therefore, improve the content of their interventions. They can also improve the timing of their interventions, because they usually intervene in reaction to a Chamber judgment with which they disagree. The states could also intervene before the Court has decided a certain matter. Basically, the states should not see interventions as a means to express disagreement, but to cooperate with the Court so as to fully inform it about, for example, the functioning of their legal system and the consequences a decision may have for their legal system.

Instead of recommending the states to intervene, the Declaration calls upon the Court to ‘support increased interventions’. The Court should providing timely information on cases that could raise questions of principle (para. 39(a)) and notify the states parties when a case raises questions of general interest (para. 39(d)). I think that these two suggestions overlap and that they can be more specific. The Court could be recommended to invite states to intervene more often. Additionally, the Declaration could ask the Court to use press releases to identify cases that could result in principled judgments. These press releases should be made available on HUDOC and not just to the states parties. The Declaration also suggests that the Court makes the questions to the parties available to the states at an early stage (par 39(b)), but this happens already: on 15 February, the cases communicated on 26 January could be found on HUDOC. Lastly, the Declaration calls upon the Court to ensure that the questions to the parties are formulated in a manner that sets out the issues of the case in a clear and focussed way (para. 39(c)). This is indeed important, because the decision to intervene is often based on the statement of facts and questions to the parties (not just the questions). I am not sure how useful this recommendation is however. The recommendation implies that these statements are unclear and unfocussed currently and I doubt if that is true. Two other possible recommendation to the Court, which are not included in the Declaration, is that it could ask questions to the intervening states more often and refer to the interventions in is judgments more often. In this way, an actual dialogue can be seen to take place. 

Expressing support for referral to the Grand Chamber  

A proposal that is new to my knowledge, is that the Court adapts it procedures so that other states parties can indicate their support for the referral of a Chamber case to the Grand Chamber. The Declaration also proposes that the panel takes such support into account when determining whether the conditions of Article 43(2) ECHR have been met (para. 38). More input from more interlocutors can indeed strengthen dialogue. As discussed already, some judgments, especially Grand Chamber judgments, may be of relevance to states other than the respondent state. It, therefore, makes sense to give them a voice, also about whether a case should be referred. Furthermore, one reason to refer is that a case has a ‘high profile’, for example because it concerns matters at the heart of a sensitive European debate. Input from the states can confirm whether a case has such a profile or not. 

The current proposal is, in my opinion, unnecessarily limited for two reasons. First, the states can only indicate their support for referral. To make this mechanism more balanced and less a means to just criticise the Chamber, I would propose that it should also be possible to explain why a judgment should not be referred. Second, the proposal only refers to the states parties, whereas the Declaration emphasises that the dialogue should also include civil society (para. 38). I would therefore propose that ‘any person concerned who is not the applicant’ (cf. Article 36(2)) should be able to voice his opinion. This amendment would also suit the logic of the Convention system better, because civil society can also intervene before the Court. 

I would like to add some practical considerations. First of all, the number of judgments that the Grand Chamber can issue is limited. Therefore, the impact of the proposal will be limited too. To illustrate, only six percent of the cases for which referral was requested, was referred to the Grand Chamber in 2017. It is also important to realise that it will remain unknown whether the Court took an opinion into account, because the panel does not reason its decisions and has continued to refuse to give reasons, even though the Brussels Declaration invited it to do so. Just giving input, without knowing its influence, hardly strengthens dialogue. The motivation for not reasoning the panel decisions – the Court’s workload, brings me to the next point: the Court may also refuse the implement the current proposal because it will increase its workload. Finally, once Protocol 15 has entered into force, the referral procedure may become less relevant altogether. Protocol 15 will remove the possibility for the parties to object to the relinquishment of jurisdiction by a Chamber to the Grand Chamber (Article 3). Therefore, probably more cases will be relinquished and less referred (Footnote 1).  These practical considerations necessitate reconsidering the proposal: is it really worth it, considering that the Court’s workload (and that of the Agents) will increase? 

Discussing and adopting texts on general developments in the Court’s case law

The most spectacular proposal for a new way to engage in dialogue is, without question, that the Declaration encourages the states parties ‘to discuss the general development of areas of the Court’s case law of particular interest to them and, if appropriate, adopt texts expressing their general views’. The discussions ‘should respect the independence of the Court’. The dialogic element of these discussions and texts is, according to the Declaration, that they ‘may be useful for the Court as means of better understanding the views and positions of States Parties’ (para. 41). The Danes want to implement this idea soon, since they add that they will organise ‘series of informal meetings of States Parties before the end of 2019, where relevant developments in the jurisprudence of the Court can be discussed’ (para. 42). 

When reading that the Declaration underlines the need for dialogue at ‘political levels’ (para. 36), I already wondered how such a dialogue should take place. The proposal that I just described is the answer to my question. I do not think that this proposal should be included in the final Declaration. The Court is a judicial, not a political, institution. It is, therefore, not appropriate to try to influence the Court by, what will be, political statements. The proposal is also ill-advised, because the Court cannot react to the statements, it cannot engage in dialogue about them. Moreover, it should be recalled that Article 19 ECHR establishes the Court to ensure the observance of the engagements undertaken by the states parties, including their engagement to secure the Convention rights by virtue of Article 1 ECHR. Additionally, Article 32 ECHR stipulates that the Court’s jurisdiction extends to ‘all matters concerning the interpretation and application of the Convention’. Since the Court has jurisdiction to interpret and the apply the Convention in last instance (Article 35(1) ECHR), it would go against the spirit of the Convention to give the states parties a comparable task that would be, moreover, broader than that of the Court, as the Court does not deal with general developments in its case law in the abstract. In short, if the states really want to help the Court better understand their views and positions, they should make the most of their pleadings and start to intervene. 

Footnote 1: Lize R. Glas, The Theory, Potential and Practice of Procedural Dialogue in the European Convention on Human Rights System (Intersentia 2016), 344.

This blog comment was posted earlier on the Strasbourg Observers blog. 

Monday, 26 February 2018

The Draft Copenhagen Declaration - Comment Series I

The ever-ongoing discussions about the Strasbourg Convention system have reached a new stage with the recent publication of a controversial draft Copenhagen Declaration by the current Danish chairmanship of the Council of Europe. In a special cooperation with the Strasbourg Observers blog, this ECHR blog will post a number of comments on this declaration in order to further inform the debate on this declaration. The series of six comments, published over the coming two weeks, is coordinated by my Utrecht colleague Janneke Gerards and by Sarah Lambrecht of the Belgian Constitutional Court. I am very grateful for their timely initiative. This is their opening comment:

The Draft Copenhagen Declaration – Food for Thought

Janneke Gerards (professor of fundamental rights law, Utrecht University, the Netherlands) and Sarah Lambrecht (affiliated researcher, Research Group Government and Law, UAntwerp, Belgium and law clerk at the Belgian Constitutional Court)

It is a well-known fact that the ECHR system of fundamental rights protection is almost continually under construction. Since the major overhaul of the Court’s structure with the entry into force of Protocol No 11 in 1998, there has been a nearly constant flow of ideas for change. Perhaps, the Court should become more constitutional court-like, or rather enhance its objective of offering individual justice. Perhaps, the Court should more actively steer national interpretations of the Convention, or rather be more restrained and more respectful of national diversity. Surely, the Court should be better equipped to deal with the continuous stream of tens of thousands incoming complaints and to handle their extraordinarily diverse nature, ranging from being repetitive and legally uninteresting to posing new, challenging and complex issues.  

The Court today is very different from the one created by Protocol No 11. In the course of two decades, the Court has been transformed into an institution that is highly efficient in disposing of individual applications which do not meet formal requirements. The Court has shown itself to be increasingly creative in dealing with huge numbers of repetitive complaints and it has shifted focus from offering primarily individual justice to justice of a more general nature. Also, the Court increasingly relies on the cooperation of national courts to share in its effort to protect the Convention rights.

Efforts for change do seem to have made a difference. Indeed, in his presentation of the Court’s 2017 annual report, the current President of the Court, Mr Raimondi, announced that the number of pending cases now has been reduced to 56,000—almost 100,000 cases less than at its peak in 2011. Clearly, this is good news. The changes made, however, have not eliminated the cause for concern. As President Raimondi also emphasised, the remaining body of pending cases is not one that is easily disposed of: about 26,000 of them are particularly challenging and difficult. Moreover, the Court has to decide these hard cases in a rather unfavourable or even hostile environment. In many States, proper implementation of the Convention and the Court’s judgments is lacking. And in some States, political unwillingness to accept the Court’s interventions in national affairs is evidently at the root of poor or selective implementation.

Against this backdrop, the design of the Convention system has continuously been the subject of much high-level intergovernmental discussion. Since 2010, the government leaders of all 47 Convention States have met from time to time to discuss the Convention system and its future. Thus far, there have been High Level Conferences in Interlaken (2010), Izmir (2011), Brighton (2012) and Brussels (2015). These High Level Conferences have all resulted in official Declarations. Each of these Declarations appear to contain three ingredients: the States’ support of the Convention system and their responsibility in upholding it, the subsidiary nature of the Court and the challenge of the overwhelming caseload. In each Declaration, the government leaders confirm their strong support of the Convention system and the Court, as well as the need for all States to ensure the proper functioning of the system by promoting awareness, execution and implementation. In each Declaration, the government leaders state that the Court should respect the principle of subsidiarity and not lightly intervene in national matters. It should allow sufficient margin of appreciation to the States, while still providing for effective and intelligible human rights standards. Finally, in each Declaration, concern is expressed about the heavy caseload of the Court and the Committee of Ministers, and in response, some new ideas and proposals are presented to help resolve this problem. The proportion of these three ingredients may slightly vary, especially at the draft stage, as well as their taste and style. Nonetheless, the cocktail itself has become a well-established classic.

What difference have these Declarations made in the ongoing reform of the Convention system? A considerable amount, it appears. Many of the concrete proposals for change made in the Interlaken and Izmir Declarations have been implemented, to the effect—as already mentioned—that the number of pending repetitive cases has strongly decreased. The Brighton Declaration even resulted in the adoption of two new Protocols, of which at least one (Protocol No 16) could have a major effect for the Court’s position and role. The Brussels Declaration as yet seems to have had somewhat less impact, perhaps because the most important ingredient in this Declaration was the emphasis on the States’ own responsibility in implementing the Convention.

Whereas many of the proposals in the preceding Declarations have yet to be fully and properly implemented by the States, a new High Level Conference, accompanied with a new Declaration, is again in the making. The Danish Government has made the further reform of the Convention system one of its priorities of its Chairmanship of the Committee of Ministers of the Council of Europe from November 2017 till May 2018. In February, a draft Declaration was published in lead-up to the High Level Conference set to take place in Copenhagen on 12 and 13 April 2018. While the draft contains the same three elements as previous Declarations, the rhetoric is different and several proposals are new. Both deserve close attention. 

The draft Declaration, firstly, invites the Court to adapt its procedures so that States Parties may indicate their support for the referral of a Chamber case to the Grand Chamber (para 38). States Parties are encouraged to intervene more (para 40) and to discuss the general development of areas of the Court’s case law of particular interest to them and, if appropriate, adopt texts expressing their general views (para 41). Informal meetings of States Parties should be held before the end of 2019, where relevant developments in the jurisprudence of the Court can be discussed (para 42). A strikingly new proposition to reduce the Court’s caseload is to remove all cases stemming from conflicts between States Parties from the Court’s remit by establishing separate mechanisms or other means (para  54).

Secondly, in contrast to the 2015 Brussels Declaration, the overall emphasis of concern has moved away from the urgent matter of better national implementation of Convention rights and execution of judgments, as justly pointed out in the joint response of a number of human rights organisations. Instead, much attention is placed on the Court’s subsidiary role and the limits of its competences, which are extensively described and emphasised, perhaps unsurprisingly, with a strong focus on immigration and asylum cases (par. 25-26). Equally clear is that the familiar language of ‘shared responsibility’ and ‘dialogue’ is used in a significantly different manner than in the 2015 Brussels Declaration. A ‘better’ or at least a different balance of shared responsibility is sought by the Danish Government through increased dialogue and participation. In this context, however, it seems that a rather particular definition is given to the notions of ‘dialogue’ and ‘participation’, which mainly implies greater possibilities for intervention by the States in the procedures before the Court and even in its case law. Indeed, some of the proposals aimed at the objective of ‘better’ balancing shared responsibility need to be carefully examined, especially in the light of the need to safeguard the Court’s independence—which is a necessity for the Court to perform its supervisory role properly and provide effective protection of fundamental human rights of individuals. Indeed, this is an issue the Court has emphasised in its own response to the draft.

Surely, it cannot be denied that many problems and difficulties trouble the Convention system, and these clearly beg for solutions. Appropriate means to channel potential tensions between the Court and the national level should be encouraged, the States Parties have to be incentivised to properly implement the Convention and execute the Court’s judgments, and the Court should be put in a position so that it can usefully and effectively offer individual and general justice to the many applicants bringing their cases. However, it is open for debate if yet another High Level Declaration is the right answer to these concerns, and if the solutions proposed in the draft are the ones most urgent and desirable. There is thus much reason to pay attention to the Copenhagen process and the draft Copenhagen Declaration and to provide an academic perspective on these developments, instead of a purely political one. 

For this reason, we are glad the Strasbourg Observers’ Blog and the ECHR Blog offer us the opportunity to present a commentary to the draft Copenhagen Declaration. In a short series of blogposts, five academics based at Dutch and Belgian universities will comment on various aspects of the draft Declaration. Lize Glas (Radboud University) will comment on the proposals for increasing State interventions in pending procedures and other proposed ways to strengthen dialogue; Leonie Huijbers (Utrecht University) will consider the attention paid to the principle of subsidiarity and the need for more process-based review by the Court; Janneke Gerards (Utrecht University) will discuss the role of the margin of appreciation doctrine; Antoine Buyse (Utrecht University) will comment on the role to be played by civil society; and Sarah Lambrecht (Antwerp University) will give her views on the proposal for States Parties to discuss and adopt texts on general developments in the Court’s case law and the role to be played by States Parties in deciding on the referral of cases to the Grand Chamber. By writing these blogposts, we hope to provide a sound basis for debate on the Copenhagen Declaration and the Convention system’s future. We are already looking forward to your comments!

This blog comment was posted earlier on the Strasbourg Observers blog.