The reform of the European Court of Human Rights:
backlogs and power struggles
Approximately 150,000 cases sit on the desks of the European Court of Human Rights, waiting for a decision. The challenge posed by the sheer accumulation of applications is at the root of the ongoing, broader reflection on the future of the Strasbourg Court.
The Brighton Conference, organised under the auspices of the UK’s Chairmanship of the Committee of Ministers of the Council of Europe, took place on the 19-20 April 2012 and brought about some interesting progress into the process of reform of the European Court of Human Rights. Expectations about the outcome of the discussions were as high as the tensions and controversy which welcomed the original draft declaration that established the basis for the negotiations. The main issue on the table was clear to all concerned: the Court is struggling not to be drown in a sea of pending applications and (despite the initiatives already launched in the past, in particular through the new dynamics of Protocol 14 to the Convention) more measures are required to avoid collapse or mounting gross inefficiencies. Political arguments and national agendas also crept into the debate, making matters even more complicated for the parties involved. The UK, in particular, made no mystery of its perplexity regarding the Court’s supposed ‘interventionism’ in national ‘affairs’.
The final Declaration and the main innovations which were agreed
The Court itself played an active role in the Brighton debate, rightly insisting on the importance of preserving its independence. At the same time, the final Declaration acknowledges that the authority and credibility of the Court depends in large part on the quality of its judges and the judgments they deliver (§ 21) - a point on which the Court itself had agreed in its preliminary opinion.
The reaffirmation of the right of individual application (§ 2) also sent out a key message, in relation to another element defended with good reason by the Court.
As for the more technical discussions, some daring proposals were wisely scrapped during the negotiations. One could mention especially the so-called ‘sunset clause’ (cases not communicated to the Governments for observations after a certain period of time would be extinguished). Another element that was ultimately conspicuously watered down and reoriented was the proposed use of ‘advisory opinions’ on the part of the Court. The original UK proposal had suggested that while such pronouncements should be non-binding, when applied by the national courts they would deprive the individual involved in the case of the right to present the same matter in Strasbourg. The final text foresees more modestly that the Convention should provide for a power of the Court (which States Parties could optionally accept) of delivering advisory opinions upon request on the interpretation of the Convention and in the context of a specific case at domestic level; such an opinion would not be binding for other States Parties (§ 12, letter d).
The option of providing for additional admissibility criteria was cast aside entirely, much to the relief of the Court, which had cautioned against it.
On the other hand, the parties agreed on a shortening of the time limit for applications, to be trimmed down from six to four months. The Court itself had also expressed doubts about the rationale for preserving the current, longer limit (§ 15, letter a).
In the context of the above discussion, so-called ‘repetitive cases’ were a particularly significant reason for concern. In such situations, while the Court has already addressed in its jurisprudence the problem existing at the national level, States persist in their failure to comply with its indications. Such national faults are a primary source of accumulation, but as the President of the Court stressed, there is a need for a sweeping strategy transcending the national borders. In this regard, the Declaration stresses that Court and State Parties do share responsibility for realising the effective implementation of the Convention (§ 3), even though the States clearly have the primary responsibility in this regard at the national level (§ 32).
National sovereignty (and the need to avoid interference with it) was also at the core of the discussions. One of the most coveted elements was the possible introduction of a new provision in the Convention, casting in stone the principles of subsidiarity and the so-called margin of appreciation. The latter has emerged in the Court’s jurisprudence as an important tool for the interpretation of the Convention. However, as the Court’s President stressed, it can neither totally exclude review by the Court nor confer a ‘blanket immunity’. As part of a compromise solution, a reference to the principle of subsidiarity and the doctrine of the margin of appreciation as developed in the Court’s case law will be included in the Preamble to the Convention (§ 12, letter b).
The bold proposal to have sanctions (including financial penalties) for States that fail to implement judgments in a timely way was not accepted. The time was perhaps not ripe for such an incisive step.
The approved Declaration also supports the reigniting of the process of accession of the EU to the European Convention, which somehow has lost momentum in recent times.
Post-Brighton: what next?
Two elements emerged clearly from the discussions held at the Conference: more concrete results were achieved compared with the two previous similar occasions (Interlaken 2010 and Izmir 2011) but no visible panaceas or definitive answers to the problems that affect the Court, particularly its daunting arrears, were found.
In any case, whatever direction is taken in the future should not endanger the role of the Court and play into the hands of the most serious (and frequent) violators of the Convention, a small minority of States that deserves to be kept under close scrutiny. In this regard the Brighton Declaration is balanced, as it does not shy away from some targeted changes to the Convention, while avoiding any downgrading of the Court.
Concerning the more ‘political’ elements of the discussions, the President of the Court, confessed to feeling ‘uncomfortable’ with the idea that Governments could dictate to the Court how its jurisprudence should be shaped and the way the Strasbourg judges should carry out their functions. On the other hand, it is also true that the Court should avoid being perceived as either ‘dictating’ or ‘experimenting’ or even ‘intruding’ within respected national traditions in the field of human rights. The latter point seems to also have been understood in Strasbourg, as some recent rulings of the Court’s Grand Chamber concerning delicate areas have shown a new awareness of the equally ‘uncomfortable’ reactions provoked by some of its past judgments.
The much debated (and occasionally maligned) doctrine of the margin of appreciation has helped the Court in steering away from near disastrous moves, for instance in the S.H. v. Austria and Lautsi v. Italy cases. Regardless of the fact that the doctrine will be enshrined in the Preamble of the Convention and not in a proper Article (as originally suggested), it is essential that the Court does not abandon this approach and possibly give it even greater prominence and flesh, especially with regard to ethically sensitive areas.
The load of work that torments the Strasbourg Court is also, at least partially, a sad reflection of the litigiousness of European societies. One could wonder whether there is a need to ‘educate’ and to create a culture which encourages, facilitates and values agreements and compromises rather than ‘final showdowns’.
What is sure is that the road does not end in Brighton. And not only because of the work imposed by the commitments undertaken by the delegations in the Declaration. Only by further building upon the achievements of last April will it be possible to reestablish the efficiency and the credibility of the European Court of Human Rights.