Reform of the European Court of Human Rights
(Based on the submission to the Council of Europe in January 2014 by INTERIGHTS and previously published in the Society of Labour Lawyers Newsletter)
The Council of Europe (the parent body of the Court) is considering the issue of the longer-term reform of the system of both the European Convention on Human Rights and the European Court of Human Rights. This follows on from a series of detailed reforms which attempt to deal with the backlog of applications pending with the Strasbourg Court. In fact the reforms already in place (in Protocol 14) have allowed the Court to reject much faster many hopeless (inadmissible) cases. Obviously the opportunity to consider the long term future of the Convention and the Court is welcome.
However, we should to pause to highlight the incredible successes of the Convention and the Court. Despite its reputation in some quarters in the UK the Court has had a massive impact on the protection of human rights across Europe and beyond. It has resulted in ending some of the most egregious practices and created possibilities for the vulnerable and for minorities to live out their lives in ways that were not possible before the creation of the Convention and the Court. We should celebrate this success and promoting this success should be at the heart of the reforms.
Many of the Court’s difficulties arise because it is the victim of this incredible success. We need to ensure that any proposals are designed to promote the practical and effective respect for human rights across Europe. This would require recognising the importance of retaining individual petition, proper implementation and enforcement of judgments and the means to ensure that the model can remain effective for the long term.
The ultimate responsibility for the current problems does not lie with the Court itself. The renewed emphasis the Court’s subsidiary role, as exemplified by the “Brighton Declaration” (and driven forward by the UK government), requires the 47 Member States themselves (including their parliaments) to take the necessary steps to ensure effective protection of Convention rights on the domestic level and, as a consequence, to reduce the supply of work provided to the Court itself. Other member states (again including the UK) should provide technical and other support to support a state that is struggling with implementation and compliance.
The fundamental principle since the Court’s inception is, and must remain, the right of individual petition. There is no justification for departing from that basic principle; and the current position concerning the management of the backlog does not require any modifications to it. We also believe that any move towards developing a ‘constitutional’ Court which picks and chooses its own cases faces insuperable problems, both in practice and in principle.
That is not to say there are not issues with the Court that need to be resolved and although the Court has streamlined its processes to address repetitive applications the continuing growth of repetitive applications reflects deeper problems at their root: the failure of domestic states to secure systemic compliance with Convention standards and the absence of effective local remedies for Convention breaches in Member states, particularly in countries facing the largest number of repetitive applications (eg Russia, Turkey, Ukraine as well as, to a lesser degree, Poland, Romania and Italy).
The substantial delays in ensuring the implementation of a very large number of judgments requires urgent remedial steps. Although there may be technical and capacity reasons for some of this, in the final analysis, the position can only be rectified by taking the strategic steps required to tackle the enforcement procedure.
We have suggested in our response that, for instance, there would be considerable benefits from appointing a Special Rapporteur as an independent advisor to drive forward the execution of judgments and on possible action in response to particular situations. We also favour changes to the procedure to so that the more reluctant states can be referred back to the Court if they delay or refuse to properly implement judgments against them.
INTERIGHTS strongly argues that the national implementation of the ECHR and resolution of systemic human rights problems are the primary responsibility of the Member States. Many of the problems the Court faces are direct consequences of the failure to achieve effective rights protection by Member states at the domestic level. It is vital to address these underlying issues rather than to amend Court processes to deal with the practical problems for case management which result from the failure to ensure practical and effective rights protection in the Member States themselves.
Some governments across Europe are less supportive of the Court’s “successes” and might be tempted to use this reform process to make changes that reduce its impact across Europe and we need to monitor the proposed reforms carefully. The constant criticisms of the Convention and Court by ministers and others in the UK are unlikely to make is easy for sensible reforms to be proposed by the UK government. What is of even greater concern is that this critical message allows some of those countries whose record is considerable worse than the UK’s to use it as a way of avoiding or delaying much needed reforms to protect human rights. We are already picking up reflections of this rhetoric in the debate on the reforms.
Richard Clayton QC and John Wadham (Executive Director of INTERIGHTS – the International Centre for the Legal Protection of Human Rights)