affiliated to the International Association of Constitutional Law
A blaze of controversy erupted over the disputed timing of Abu Qatada’s referral request to the Grand Chamber of the European Court of Human Rights this week. Whilst raising a juicy legal question for proceduralists (examined incisively here and here) the inevitable media hysteria coincided with efforts to reform aspects of the Strasbourg court and the publication of fresh research on the UK-ECHR relationship. The contrast of the media frenzy with the relatively low-key (by international standards) Council of Europe Ministerial Conference in Brighton was stark. However, the resulting Brighton Declaration, formally agreed on 20 April 2012, may inject some measured logic into an often misinformed debate on the role and working practices of the European Court of Human Rights.
Lively legal debate was generated in the lead-up to the Brighton Conference despite limited leaked information on the successive draft Declarations. NGOs shared a broad platform issuing two Joint Statements against more extreme proposals apparently seeking to curb access to the court. Prior to the Conference, evidence from the Court itself seemed to share this cautious approach; its openness to considering (previously mooted) initiatives, such as extending advisory jurisdiction, tempered by calls not to rush any reforms—to allow more time for recent measures introduced via Protocol 14 to the Convention to embed in the Strasbourg system, and to assess their mid/long-term impact on the Court’s docket. While Brighton represents the latest in a series of efforts to reform the Court—most recently in snowier/sunnier climes (Interlaken (2010) and Izmir (2011))—the UK government’s motivations for reform during its current chairmanship of the Council of Europe were expressed in terms which promised something altogether more radical.
On any reading of the final text, it is clear that the reforms in the Declaration have been substantially toned down (see initial overviews from Joshua Rozenberg and Antoine Buyse). While the Brighton Declaration may have made just enough changes to allow the UK to claim some kind of political success, the reality is that the changes are—for the moment— marginal. Will the Declaration deliver anything meaningful in tackling the Court’s voluminous caseload? There is far more in the Declaration than a short piece can handle. The impact (if any…) of adding references to subsidiarity and margin of appreciation to the Convention’s preamble will be ripe for discussion on the blogs and in the courtroom. The comments below focus on select procedural issues.
Time-limit to apply to the ECtHR
The Conference agreed that the time-limit to apply to the Strasbourg court under Article 35(1) ECHR should be reduced by one-third, from six months to four. On paper, this was the most likely of the tabled reforms to be agreed. The proposal to reduce the time-limit in the original draft Declaration was lifted directly from the Court’s Preliminary Opinion, which had suggested a reduction to two/three/four months. It will relieve many that the Conference chose to minimise the extent of the reduction. However, critics of any change to Article 35(1) ECHR may argue that reducing the time-limit could lead to a greater number of knee-jerk applications, more poorly drafted/advised applications, or applications made without legal advice. This change may well risk prejudicing applicants with genuine claims from mounting well-reasoned applications. These risks may be real (and merit research) but unless a spike in applications or tangible evidence of such increased prejudice to applicants becomes apparent, it will be difficult to measure any impact of a reduced time-limit to apply.
Reformed admissibility criteria proposed in an early draft were a key concern to both the Court and NGOs. The Brighton Declaration preserves the essential criteria, with the most criticised docket-control element dropped. The proposal that applications should be rendered inadmissible unless a national court “erred” in interpreting Convention rights (para 23c of the earliest public Draft) has been abandoned. The Declaration’s affirmation in para 15d that the Court should adopt “a strict and consistent approach” in rendering applications inadmissible under Article 35(3)(a) ECHR (inter alia) unless a “serious question concerning the interpretation or application of the Convention” is raised marks nothing new. The track changes on a subsequent pre-Brighton Draft suggest this point particularly exercised the drafters, but the end result seems to be nothing more than a gloss on the existing admissibility criteria, and one which will not trouble the Court—which rightly remains firmly in control. However, an amendment to Article 35(3)(b) ECHR (removing the words “and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal”) was agreed by the Conference. This would rectify what some regard as an anomaly with the “significant disadvantage” test introduced by Protocol 14 ECHR.
Some parts of the Brighton Declaration provide the kind of praise for the Court which has been in scant supply recently. The Strasbourg court’s “extraordinary contribution” to the protection of human rights in Europe (para 2) is noted, with the impact of admissibility measures taken in the context of Protocol 14 is described as “encouraging” (para 6), the Declaration noting “with appreciation” the Court’s objective to dispose of the clearly inadmissible applications pending before it by 2015 (para 20b). This recalls the Court’s observations in its Preliminary Opinion and emphasised by President Bratza in evidence to the Joint Committee of Human Rights that a range of measures taken by the Court have already begun to alleviate its backlog, and that further measures should help accelerate this process in the near future (for example, greater use of the “significant disadvantage” criterion, greater scope for the use of single judges).
The irony of multiple references to greater transparency and clearer communication of court procedures, admissibility criteria and time-limits may not be lost on Home Office lawyers awaiting the ECtHR’s decision on Abu Qatada’s referral request. In calling for “stricter application” of the time limit in Article 35(1) ECHR and reiterating “the importance of the Court applying fully, consistently and foreseeably all the admissibility criteria including the rules governing the scope of its jurisdiction”, para 15b of the Brighton Declaration alludes to the fractious debate on subsidiarity behind the drafting process. Yet in welcoming “the increased provision by the Court of information to applicants on its procedures and particularly on admissibility criteria” (para 15e) the Declaration identifies a significant issue. The Court must ensure that its procedural rules and criteria are clearly drafted and publicized; the Declaration’s bid to reduce the time-limit for admissibility makes this all the more important. In the slightly different Abu Qatada context of referral to the Grand Chamber, lawyers, academics and commentators have been split on the deadline issue. There is no need for this level of confusion.
One of the most interesting (if very loosely drafted) proposals survived the original draft and may yet introduce a new dynamic in relations between national courts and the ECtHR. The possibility of extending the ECtHR’s rarely invoked advisory jurisdiction to enable highest national courts to seek ‘advisory opinions’ from the Court (in a manner somewhat similar to the preliminary reference mechanism in the EU legal context) managed to elicit fairly broad support. Though this proposal is not new, it does appear to have gained momentum in the recent negotiations.
As framed in the original draft Declaration, the UK spin on the advisory opinion proposals seemed closely aligned to its approach to subsidiarity which underscored the negotiations (the proposed non-binding character of advisory opinions, and their proposed effect of preventing further recourse to the ECtHR in the same proceedings are clues in para 19d of the original Draft). Before the Brighton Conference, the ECtHR duly published a reflection paper on the possibility of extending advisory jurisdiction. Its paper sees the potential value of an advisory opinion mechanism in deepening the dialogue (curiously dubbed “institutionalised dialogue”, para 4) between national courts and the Strasbourg court. Use of the word “institutionalised” perhaps implying that such dialogue may influence relations on a wider level than simply between courts. Unsurprisingly, the UK-led view that use of the mechanism should prevent exercise of the right to individual petition in the same proceedings was lanced (para 24, reflection paper). Although the Brighton Declaration is now silent on this particular point, it is surely unthinkable that an advisory opinion mechanism will be introduced on a basis which restricts the right to individual petition.
The Court effectively agreed to make the advisory opinion mechanism as optional as possible (introduction via an Optional Protocol to the Convention; restricted to highest national courts; limited rights of intervention for third parties) and saw the possible long-term impact which an advisory opinion mechanism may have on the Court’s docket. However, there are clearly differences of opinion as to its merits both among High Contracting Parties to the Convention and at the level of the Court (the reflection paper notes differing views on whether such opinions should be binding, para 24). Critics would also be justified in being skeptical as to whether the Grand Chamber will have the capacity in the short-medium term to handle the greater workload which the advisory opinion mechanism would clearly generate. There is clearly still much to consider: as para 12d of the Brighton Declaration invites the Committee of Ministers to draft an Optional Protocol for a (very much optional) advisory opinion mechanism, its merits will be much debated in the foreseeable future.
No magic bullet
One lesson which can be drawn from the process of concluding the Brighton Declaration is that it was never going to magic away either the Court’s docket or its essential, authoritative role in human rights adjudication. The hype (in some quarters, hostility) surrounding the negotiation process has not gone unnoticed at the Court. However, the revised set of proposals in the Brighton Declaration seems to have largely neutralised the more political features of earlier draft versions.
A striking feature of the Declaration, which moves it away from the politicised aspects of the subsidiarity debate, is the prominence of concrete, pragmatic steps which should be taken to enforce the Convention at national level (Section A). It is no secret that the Court’s backlog is dominated by applications from small minority of jurisdictions. It is therefore no surprise that the Declaration views the role of the Council of Europe as “crucial” in supporting implementation of the Convention, and in its wider role promoting human rights, democracy and the rule of law. This is something which the Council of Europe probably under-promotes, and which would merit being better understood. Efforts to alleviate the Court’s backlog may start in Strasbourg, but its authority, legitimacy, and its success in tackling it also depend on developments much closer to home.
Noreen O’Meara – Lecturer in Law, University of Surrey; Doctoral researcher, Queen Mary, University of London