April 29, 2020
This post was written by Stefanos Xenofontos, PhD Researcher at Birmingham Law School
The Steering Committee for Human Rights (CDDH) has recently submitted its contribution to the evaluation of the Interlaken process for the reform and future of the European Court of Human Rights (ECtHR or ‘the Court’). Building upon its assessment in the 2015 report on the matter, the CDDH’s latest report, signals the end of a decade-long reform process, at least at a technical level. The ECtHR has pledged to reply to the Report in 2020 (See, Foreword by President Sicilianos). Despite its importance, however, the CDDH’s Report did not attract much (academic) attention to date – something that the present post seeks to compensate. In what follows, after presenting the main conclusions reached by the CDDH, I argue that a rather conservative approach regarding the framework of the ongoing reform process remains apparent. In other words, the CDDH’s primary focus is on sustaining the current status quo of the European Convention on Human Rights (ECHR) system while disregarding any other possible alternative reform outside this existing framework. In this regard, I question whether the current reform framework, and measures adopted within it so far, have been sufficient in addressing and/or resolving the underlying challenges facing the ECtHR. The post concludes that in the absence of a clear determination of what the future role of the ECtHR should be, in a way that best reflects its regional, supranational and subsidiary character, the root causes of the Court’s challenges will continue to be overlooked and its viability and long-term effectiveness will be difficult to achieve.
1. The CDDH Contribution to the Evaluation of the Interlaken process
According to the Action Plan agreed under the Interlaken Declaration, the Committee of Ministers (CoM) was required to decide, before the end of 2019, whether measures adopted during the reform process had ‘proven to be sufficient to assure sustainable functioning of the control mechanism of the Convention or whether more profound changes are necessary’. Based on this timeline, the CoM instructed the Steering Committee for Human Rights (CDDH) to draft a contribution to this evaluation. The CDDH, along with the subcommittee of experts on the ECHR system (DH-SYSC), prepared a preliminary draft of the contribution, which was then adopted in November 2019. The finalised CDDH Report was subsequently presented at the CoM’s 1362nd Deputies meeting, on 4 December 2019.
The CDDH’s technical contribution details the achievements made (e.g., paras 30-39, 106-108, 152-153, 188) as well as the ongoing challenges that are yet to be tackled (e.g., paras 120-122, 199-203). Most crucially, though, the significance of the CDDH’s contribution is reflected in its conclusions where it holds that
‘the necessity of a new major revision of the system is therefore not apparent. In the light of subsequent developments, the CDDH sees no reason to depart from its assessment made in 2015 that the current challenges the Convention system is facing can be met within the existing framework’ (para 221).
The CDDH then continues, suggesting that ‘what appears important is rather to allow the Convention system as it has emerged from the Interlaken process and Protocol No. 14, provided with sufficient resources which the States Parties have committed themselves to provide, to demonstrate fully its potential’ (ibid).
2. A second reading of the CDDH’s conclusions
By adopting these conclusions, the CDDH merely suggests a “wait and see” approach with regard to the reform measures adopted in the last decade with nothing but a mere hope that these will yield some (positive) outcomes. This is particularly the case in relation to Protocol No. 15, which is yet to enter into force, but also with regard to Protocol No. 16 as it is still in the initial, experimental stages of its use by both the States and the ECtHR. As the CDDH also acknowledges, the success of the reforms adopted so far remains, unavoidably, conditional upon the continuous provision of ‘sufficient resources’ by the Member States.
In line with the ECHR States’ perceived loss of reform appetite, as shown by the lack of any ‘really new or exciting solutions and ideas’ at the last high-level conference in Copenhagen, the CDDH, unsurprisingly, follows suit by adopting a reserved approach on the matter. Keeping consistent, therefore, with its previous, rather conservative, stance regarding the ECtHR reform, the CDDH primarily seeks to maintain the status quo of the current ECHR system by preserving its structures and procedures as they have been shaped to date, rather than calling for any additional, alternative reforms outside the existing framework.
Despite the notable and much-welcomed improvements already achieved since the beginning of the Interlaken process, the ECHR system, and the ECtHR in particular, continues to face a series of pressing challenges that risks its viability and future. Contrary to current Court statistics and present reality on the ground in certain Member States, the CDDH Report presents the Court in a very, almost excessively, positive light. It also allows more time for recent measures to be better embedded in the Strasbourg system without rushing any further reforms – a tactic already deployed in previous stages of the reform process, arguably, without much success.
Undeniably, much more progress has been achieved during the last decade compared to previous reform periods. The ECtHR reform process, nevertheless, remains slow and several underlying issues are yet to be resolved. Yet, the CDDH approves and, indeed, favours the existing reform framework, primarily designed to tackle the practical/institutional challenges facing the ECtHR, such as the case overload, and improve its institutional effectiveness. What the CDDH seems to disregard in its report, though, is that the degree of effectiveness of these measures in the long term remains questionable. Similarly, it is also still unclear whether the existing framework has been sufficient to adequately address or grapple with the Court’s underlying challenges.
ECtHR’s occasional calls for increased innovation and the need for overcoming any creativity limitations that may arise in relation to the Court’s reform may have proved, in the end, overly optimistic and not adequately capable of pushing the boundaries of the existing reform framework even further. Equally, repeated calls for a strong and independent Court (see here, here, here) seem not to have been fully materialised yet.
3. The elephant in the room: The future (role) of the ECtHR
It is worth recalling that ‘Interlaken’ and the series of subsequent conferences ‘on the Future of the Court’ were held in response to a call, inter alia, to give the ECtHR a ‘clarified mandate’. So, while the role of the ECtHR has been a recurring topic during the reform process, this old-age question remains substantially unanswered and thus ambiguous and open for ongoing contestation.
On several occasions during the last decade, the various ECHR stakeholders involved in the debate on the future of the ECtHR have repeatedly failed to engage in a genuine discussion on how they envisage the Strasbourg Court’s role and function in an adequate, comprehensive and meaningful manner. More recently, States sought to strategically emphasise more what the role of the Court is not instead of what it actually is or should be, while attempts to rectify this have been rather delicate. Similarly, the various politically motivated attempts to devalue the important role of the Court and further weaken its influence and authority (see eg, here and here) prove that the roadmap pursued so far could only be successful with regard to those States which share a particular view about the role of the Court and faithfully engage with Strasbourg.
Arguably, the role and function that the ECtHR ought to serve, as a regional human rights court and in the way it has evolved to date, should dictate the contours of any reform. A clear determination of this matter is paramount and must be placed at the heart of any debate on the Court’s reform and future. In failing to do so, any reform measures adopted will simply continue to overlook the root causes of the challenges facing the ECtHR. In the absence of such determination, therefore, the reform process will most likely withhold from adopting measures capable of being effective and/or sufficient in improving the Court’s overall functioning and guaranteeing its long-term future.
The above conclusions reflect, of course, the opinion of the CDDH on the matter and the CoM, as per the Interlaken Declaration, will have the final say on the evaluation of the Interlaken process. As previous experience has shown, though, it is highly unlikely that the CoM will depart from the position of the technical group it itself established to monitor the reform process of the Court. Consequently, CDDH’s findings, including the above conclusions, are expected to be confirmed by the Member States’ Representatives at the upcoming 130th Ministerial Session on 15 May 2020 in Tbilisi, at which point the decade-long Interlaken process will formally come to its end.
As the 70th anniversary of the Convention system is approaching, CDDH’s conclusions are particularly timely. They attest to the present reality of the ECHR system accepting that the ECtHR, although it has certainly proved capable of developing and adapting, can only do as much and that it is now up to the States to honour their commitments and obligations under the Convention. The conclusions of the CDDH serve, therefore, as a reminder that while respect for human rights is a legal obligation, defending them in practice is – and has always been – a political and diplomatic act.
The Convention system, however, has been on a constant process of reform since its inception. The debate on the future of the ECtHR will certainly not end with the conclusion of the Interlaken process and, to paraphrase one of Victor Hugo’s finest expressions, there will always be more promised land ahead than conquered territory behind us. What is evident, though, is that in the absence of drastic, decisive measures and, indeed, a change in the current course of action regarding the future of the ECtHR, the ECHR control mechanism may well continue to underperform. The ECtHR itself risks remaining hostage to its own institutional deficiencies (and the political support from the States) while conducting its endless, but often ineffective, Sisyphean task of adjudicating an unsustainable docket. Whether the Interlaken roadmap is leading to the right direction and measures such as Protocols Nos. 15 and 16 will eventually prove successful, only time will tell. Arguably though, this past decade presents yet another missed opportunity to fundamentally re-design the reform framework and clearly determine what role the ECtHR should assume in this day and age so that its viability and long-term effectiveness are guaranteed.