March 02, 2018
By Sarah Lambrecht, researcher, Research Group Government and Law, UAntwerp and law clerk at the Belgian Constitutional Court
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. 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.
 Please note that the views expressed here are personal to the author.
 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 <www.telderscommunity.nl>, (97) 105.