Much progress has been made following the agreement of the Brighton Declaration on reforms to the working practices of the European Court of Human Rights (ECtHR).  The Brighton Ministerial Conference in April 2012 prompted renewed reflections on the role and legitimacy of the ECtHR itself.  In the UK, the timing of the Conference coincided with highly politicised debate over Strasbourg’s prisoner-voting case law and the sanctity of subsidiarity; debate which tended to overshadow practical concerns about the ECtHR’s capacity to exercise its constitutional and adjudicatory functions.  One year on, this post provides an update on progress made pursuant to the Brighton Declaration with a particular focus on proposals to extend the Court’s advisory jurisdiction under draft Protocol 16 ECHR.

Protocol 15 ECHR: Practical Solutions?

While the docket of the ECtHR has begun to fall over the past year (having peaked at approximately 159,000 pending cases in early 2012), there is no shortage of applications.  Strategies have been adopted in recent years to alleviate the Court’s caseload under Protocol 14 ECHR and via changes to the Court’s working methods.  The increased use of the single-judge procedure, for example, and the increased competences provided to three-judge committees are changes which seek to impact on the volume of manifestly inadmissible or repetitive cases.  The corollary increase in power accorded to the Court’s Registry (which plays a vital but powerful role in filtering out apparently unmeritorious cases en masse) merits further scrutiny.  The significant delays involved in introducing reforms (Protocol 14 ECHR remained open for signature for six years before its entry into force in June 2010) are partly to blame for the slow progress in this area.  It will take more time for these changes to radically impact on the Court’s caseload, which remains unsustainable.

Many of the practical changes suggested in the Brighton Declaration were relatively unambitious.  Protocol 15 ECHR, adopted by the Committee of Ministers of the Council of Europe on 16 May 2013, comprises a collection of reforms deriving from the Brighton negotiations.  The most eye-catching of these is the reduction of the time-limit to apply to the ECtHR under Article 35(1) ECHR from six months to four.  This move was supported by the Court in its Preliminary Opinion pre-Brighton, which indicated that the Court was open to a significant reduction to the time-limit.  Protocol 15 ECHR also provides for references to subsidiarity and margin of appreciation to be added to the preamble to the Convention.  The new recital reads: ‘Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention’.  As noted above, debate on the principle of subsidiarity and the doctrine of the margin of appreciation was a feature in the lead-up to the Brighton Conference.  While the addition of a new recital clearly stems from the agreement at Brighton, and will provide a further point of reference for the Court, it is (in my view) hardly likely to make a meaningful substantive impact on the Court’s adjudication, in practice.

Other procedural aspects covered by Protocol 15 ECHR include an adjustment to the ‘significant disadvantage’ criterion, which was a key concern for NGOs at the Brighton Conference.  The Protocol rectifies an apparent anomaly introduced by Protocol 14 ECHR by deleting the words ‘and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal’ from Article 35(3)(b) ECHR.  This adjustment will widen the Court’s scope to reject applications.  Furthermore, parties will no longer be able to object to the relinquishment of jurisdiction over a case from the Chamber to the Grand Chamber under Article 30 ECHR.  This innovation is welcome as a streamlining measure – indeed, para 25(d) of the Brighton Declaration encouraged States Parties to refrain from raising objections to the relinquishment of jurisdiction pending the adoption of Protocol 15 ECHR.  Finally, in a measure which may enhance the perceived independence of judges and reduce turnover of the Court’s membership, the Protocol scraps the current compulsory retirement age (70) and introduces a requirement that candidates for judicial office must less than 65 years of age when their nominations are received by the Parliamentary Assembly.  This reform will only apply to elections taking place after the entry into force of Protocol 15 ECHR.  As ECtHR judges are elected to serve a nine-year term, this measure effectively raises the maximum retirement age to 74.  Food for thought for any states reviewing rules on retirement ages for national judges…

Draft Optional Protocol 16 ECHR: Extending the Court’s Advisory Jurisdiction

The proposal to extend the ECtHR’s limited advisory jurisdiction powers to enable highest national courts to seek advisory opinions is in the process of being agreed via Draft Protocol 16 ECHR.  Whilst this initiative was tabled at the Brighton Conference, it had been mooted and discussed in Council of Europe (CoE) circles with increasing frequency since the Wise Persons’ report in 2006.  Indeed, the roots of this initiative can be traced back decades to the adoption of Protocol 2 ECHR.  This proposal gained sufficient support to be included in the Brighton Declaration and has progressed through the drafting stages.  The resulting draft optional Protocol is currently being considered by the Committee of Ministers, which will take account of the ECtHR’s Opinion on Draft Protocol 16 (adopted by the plenary court on 6 May 2013), and the Parliamentary Assembly’s Opinion (anticipated at the end of June 2013 – draft version adopted on 27 May 2013) when deciding whether to adopt the draft Protocol.

Characterized as ‘the protocol of dialogue’ by Judge Spielmann, Draft Protocol 16 ECHR permits ‘highest national courts and tribunals’ to request non-binding advisory opinions on ‘questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the Protocols thereto’ (Article 1(1)).  Such questions should arise in concrete cases, avoiding abstract review (Article 1(2)) – the Court’s latest Opinion emphasising the absence of any role for the ECtHR in reviewing facts or adjudicating on national proceedings (at para 8).  Highest national courts and tribunals competent to request advisory opinions should be nominated by Contracting Parties, with the surprisingly flexible gloss that such nominations may be changed ‘at any later date’ (Article 10).  The admissibility of requests and delivery of opinions would be a task undertaken exclusively by the Grand Chamber of the Court: admissibility handled by a 5-judge panel, the delivery of opinions by the Grand Chamber itself (Article 2(1)-(2)).  After disagreement on the question of whether reasons for declining to deliver advisory opinions (evident in the Court’s Reflection Paper (para 21) and on the part of the drafting group), the Protocol provides that decisions declining requests for advisory opinions should be motivated with reasons (Article 2(1)).  It would have been odd for a Protocol aimed at enhancing dialogue between courts not to require the ECtHR to provide specific reasons to requesting courts.  The Court’s Opinion (at para 9) suggests that it has now been persuaded by the benefits of this approach, in the interests of promoting ‘constructive dialogue’ (echoing Lord Neuberger’s phrase in Pinnock).  Such reasons will, the Court observes ‘normally not be extensive’.

Assuming that this proposal will be adopted (a politically unsafe assumption, but for the purposes of this post a convenient one) its impact and reach will be limited by its adoption via an Optional Protocol.  Draft Protocol 16 ECHR will enter into force after ratification by 10 Contracting Parties (Article 8(1)).  The Court has consistently supported the optional nature of the proposed procedure.  Without a potentially long wait for ratifications by states supporting this initiative, this may offer scope for interesting early opinions on aspects of the Convention and its Protocols which are of greater (substantive) interest than opinions deliverable under the current restrictive regime (Article 47 ECHR).  The early opinions sought by highest national courts pursuant to the Court’s expanded jurisdiction could prove to be a good indicator of what national courts perceive as being particularly problematic issues.  The submission of questions relating to jurisdictional issues, apparent inconsistencies in Strasbourg jurisprudence, or alleged restrictive approaches to the margin of appreciation doctrine could (hypothetically) emerge as questions which are the subject of advisory opinions, as well as more obvious questions relating to the compatibility of national law with the Convention.  Early experiences with this procedure could inspire or dissuade further Contracting Parties in ratifying the Protocol, and impact on nominated courts’ preparedness to engage with it.

There is much to be said for designing a system which actively reinforces dialogue between the ECtHR and highest national courts, facilitating sound interpretation and application of Convention rights at national level.  However, aspirations for this procedure as a ‘platform for dialogue’ which will additionally impact on the Court’s voluminous docket seem utopian.  A reduction in the Court’s docket of pending contentious cases will not materialise in the long-term unless serious consideration is given to the Grand Chamber’s capacity to handle this procedure.  There is an obvious risk that it could generate more litigation without achieving the desired knock-on effects of reducing contentious cases.  Moreover, the scope for overlap between the Court’s advisory jurisdiction and its contentious case law is real (were the delivery of an opinion to trigger, rather than prevent, applications).  Though the Court ‘endeavours to speak with one voice’ when delivering an advisory opinion (ECtHR Opinion, para 11), the scope for the delivery of separate opinions provided by Article 4(2) could contribute to uncertainty and lead to further applications. The need for expeditious delivery of advisory opinions, as accepted by the ECtHR in its Opinion (para 13), whilst at the same time avoiding delays to pending contentious cases could be a big ask. The Grand Chamber rarely delivers more than two-dozen cases per year: the last thing it needs is more.

Though the Court’s attitude towards extending advisory jurisdiction appeared somewhat muted in its Preliminary Opinion, the latest Opinion fully subscribes to the Protocol’s aims.  Political support for this kind of reform has been patchy over the years; CoE reports and proceedings have variously recorded states’ support and opposition for this proposal.  It remains to be seen whether the Committee of Ministers approves Draft Protocol 16 by consensus, or whether a more complex vote is needed.  If Protocol 16 ECHR is approved, the UK, in its traditional schizophrenic approach to this issue – supportive of reform, but sceptical of actually being involved – is not expected to be at the front of the queue to ratify.  The UK Supreme Court may be shielded from engaging with this procedure for some time yet.

A year ago I viewed the Brighton Declaration with a mix of relief and concern.  The final Declaration succeeded at neutralising the more political features of earlier draft versions, but it did so without proposing radical, efficient measures to speed up the delivery of justice.  The fundamental appeal of an initiative such as the extension of advisory jurisdiction under Protocol 16 ECHR will prove hollow if it fails to meet its objectives: promoting dialogue on one hand, whilst over-burdening the Grand Chamber and potentially lengthening the adjudicatory time for other contentious cases.  For as long as the ECHR system views the right of individual petition as something too precious to erode – balancing constitutionalist and adjudicatory roles as if on a tightrope – it seems idealistic reforms will continue to influence the kind of Court it strives to be.

[Extended analysis of draft Protocol 16 ECHR is provided in K. Dzehtsiarou and N. O’Meara ‘Advisory Jurisdiction and the European Court of Human Rights: A Magic Bullet for Dialogue and Docket-Control?’ Legal Studies (forthcoming, 2014).]

Noreen O’Meara is a Lecturer in Law at the University of Surrey

Suggested citation: N. O’Meara, ‘Reforming the European Court of Human Rights through Dialogue?  Progress on Protocols 15 and 16 ECHR’  UK Const. L. Blog (31st May 2013) (available at http://ukconstitutionallaw.org).