By Janneke Gerards (professor of fundamental rights law, Utrecht University, the Netherlands) & 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!