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Towards a reformed European Court of Human Rights

Submitted by on 12 Jul 2012 – 12:16

Martyn BondBy Martyn Bond, Visiting Professor of European Politics and Policy at Royal Holloway, University of London

Interlaken 2010, Izmir 2011, Brighton 2012: three steps along the path of reforming the European Court of Human Rights. With all the fanfare of a ministerial conference, the British Presidency organised stage three with the forty-six other member states of the Council of Europe in April. From it emerged the Brighton Declaration.

The Declaration is not short and pithy. It covers nine sheets of close type, running to thirty-nine articles, many with several subsections, and dealing with small details as well as big principles. It opens with a summary of developments from Interlaken through Izmir, and then  addresses implementation of the ECHR at national level, interaction between the Court and national authorities, individual applications to the Court, including how they are processed, Judges and the Court’s jurisprudence, the execution of judgments, and the longer term future of the Convention system as well as the Court. It is political as well as practical, balances clarity with ambiguity, and represents the best compromise available after three years of international negotiation.

The Court and the member states face two key problems.

Firstly, a massive increase in applications to the Court –largely of inadmissible cases.  People living in the states of central and eastern Europe and from the former Soviet Union and Yugoslavia gained the right of individual petition to the Court when those states joined the Council of Europe. For several years efforts to simplify the procedure for filtering out trivial, repetitive and otherwise inadmissible applications were frustrated by Russian intransigence, and only recently have the member states put a fast-track procedure (Protocol 14) in place to tackle the backlog of over 150,000 pending applications. The problem is under control, but it will be years yet before it disappears.

Secondly, with this backlog of inadmissible applications has come an increase in admissible cases, more than the present procedures of the Court can deal with. These cases face increasing delays, and justice delayed is justice denied. Currently there are roughly 3,000 admissible cases recognised each year, but the Court delivers fewer than 2,000 judgments. While the backlog of inadmissible cases is slowly declining, the backlog of genuine cases is quickly growing. That is the nub of the second problem, since by definition these genuine cases address serious issues and often require speedy attention.

The Brighton Declaration goes a long way to reduce the backlog and to concentrate the Court’s efforts on the serious cases.

The Court will issue more ‘pilot judgments’ to dispose of repetitive cases en masse. Cutting the deadline to file an application from six to four months after the abuse complained of may also help. Additional staff in the Registry of the Court, possibly extra Judges seconded on a temporary basis, and using more IT will have a positive effect. In any case the backlog is declining, and with these measures in place it will decline faster.

As for prioritising serious cases, the Declaration goes some way to ensure that only issues not adequately dealt with in the light of the Convention at national level actually come before the Court in Strasbourg. It writes the principle of subsidiarity and the margin of appreciation (respect for decisions of national parliaments and courts) into the Preamble of the Convention, and invites the Court to issue ‘advisory opinions’ based on existing ECHR jurisprudence to guide national courts in reaching their judgments.

Applied in a restrictive manner, advisory opinions could have the perverse effect of blocking access to the Court in Strasbourg. If a national court could be shown to have followed an advisory opinion faithfully and delivered a judgment which fully respected it, why should the plaintiff still take an appeal to Strasbourg? But in another sense, that is just the outcome that the Court should welcome. In a utopian world where states fully respected the ECHR, the Court would be – and should be – out of business. In our real and more fallible one – following this proposal – only serious cases which raise new issues of law and interpretation will actually go to Strasbourg. Then the structures and resources of the Court should be adequate to deal with what will be a much smaller number of cases.

The Brighton Declaration went further than just improving the efficiency and effectiveness of the Court’s procedures. It also confirmed new guidelines for the selection of candidates for the post of judge, a major step towards ensuring that only well qualified judges are shortlisted nationally before election to the Court by the Parliamentary Assembly. To ensure consistency in judgments from the Court, the Declaration also strengthened the role of the Grand Chamber by deleting the right of any party to block a reference up to it from a lower Chamber. We can therefore expect fewer cases, but more of them dealt with at the most senior level and in the largest formation of the Court. The Declaration also set targets to avoid future delays: admissibility of any application should be decided within one year, and judgment delivered no more than twelve months later.

But any judgment is emptied of meaning if the member state concerned does not implement it fully in practice. Since the proof of the pudding is in the eating, the Declaration also considered the execution of judgments in some detail. Member states are expected to develop ‘action plans’ to improve the execution of Court judgments, and to respond quickly and effectively to ‘pilot judgments’ which identify systemic issues which give rise to repetitive cases. This is an area where the Committee of Ministers retains oversight, but national parliaments are now formally invited to consider how judgments are carried out in their respective countries, and the Parliamentary Assembly of the Council of Europe is encouraged to continue its practice of commenting on the process at European level.

Member states have now ‘talked the talk’ by agreeing the Brighton Declaration. Within eighteen months – by the end of 2013 – they are expected to ‘walk the walk’ by formally agreeing a new Protocol to amend the European Convention on Human Rights. Many of the individual steps are small and procedural, but cumulatively they could have a dramatic effect on how the Court really does defend human rights at the European level, and how fully member states put the same principles into practical effect in their national systems.

Martyn Bond is the author of The Council of Europe: Structure, History, Issues. Routledge, 2011.