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.