Brighton declares

A High Level Conference on the Reform of the European Court of Human Rights was held in Brighton over 18-20 April. Members of the court along with representatives of the 47 member states of the Council of Europe were in attendance, and the Brighton Declaration was adopted.

It has long been recognised that the caseload of the ECtHR is impeding the court’s efficacy. Since its creation in 1959, the number of applications to the ECtHR has rocketed, reaching over 50,000 every year, with 64,500 applications lodged in 2011. There are currently just short of 150,000 applications pending (March 2012 statistics from www.echr.coe.int), with a peak of over 160,000 reached last summer (August 2011).

The Brighton conference was the third high level conference held on the reform of the ECtHR in the last two years, and the Council of Europe has been exploring a means to improve the workings of the court since 2000.

In 2004 Protocol 14 was adopted, although it did not come into force until June 2010 on the final ratification by Russia. The Protocol has allowed for a single judge to make a decision on the admissibility of an application, with a view to decreasing the backlog of cases before the court. Previously a minimum of three judges had been required to review each application. The Protocol has also established three-judge committees to decide on the merits of a case, where previously seven had been necessary. The introduction of the priority policy is intended to assist the court to focus on cases in order of urgency. Protocol 14 additionally encouraged the court to declare inadmissible applications that do not raise serious human rights questions or demonstrate substantial harm suffered by applicants, enabling the court to focus on the most important human rights issues.

Brighton Declaration

Reaffirming their commitment to the ECHR and the right of individual application, the states parties noted that the Convention was “underpinned by the fundamental principle of subsidiarity”. The results achieved within the framework of Protocol 14 were noted, but it was recognised that they alone would not provide a “lasting and comprehensive solution” to the over-burgeoning caseload of the ECtHR.

The Declaration is split into eight sections.

A. Implementation of the Convention at national level

Affirming the strong commitment of the states parties to fulfil their primary responsibility to implement the Convention at national level, the conference recommended particular measures that states parties should take to ensure this. Included was the establishment of an independent national human rights institution; the introduction of new domestic remedies; enabling litigants and national courts and tribunals to rely upon relevant provisions of the Convention; and providing public officials and judges, lawyers and prosecutors with information and training about Convention obligations.

The conference also encouraged all member states to ensure that translations of significant judgments, and the court’s Practical Guide on Admissibility Criteria, are translated into national languages.

States parties are encouraged to make additional voluntary financial contributions.

B. Interaction between the court and national authorities

For reasons of “transparency and accessibility”, the conference concluded that a reference to the principle of subsidiarity and the doctrine of the margin of appreciation should be included in the preamble to the ECHR.

The option of accepting advisory opinions on the interpretation of the Convention was considered but would not be mandatory.

C. Applications to the court

The conference noted that it is for the court to decide on the admissibility of applications, and encouraged a stricter application of the time limits under article 35, along with the exhaustion of domestic remedies.

It was decided to reduce the time limit under article 35 within which an application must be made. Previously cases had to be brought to Strasbourg within six months of a final decision of the national courts. This has been reduced to four months.

D. Processing of applications

The conference noted that the number of applications has doubled since 2004, and that well-founded applicants have to wait years for a response.

Expressing concern at the number of repetitive applications that “mostly arise from systematic or structural issues at the national level”, the conference stressed that it is the state party’s responsibility, under the supervision of the Committee of Ministers, to ensure that such issues are resolved.

The conference welcomed the court’s new priority policy and pilot judgment procedure.

The Declaration noted that it may be necessary to appoint additional judges to the court to assist with the caseload, and called on the Committee of Ministers to make a decision about this by the end of 2013. The court’s request for the further secondment of national judges and high level independent lawyers was noted, and states parties were encouraged to comply.

The conference invited the court to consider the possibility of online applications and simplified application forms.

E. Judges and jurisprudence of the court

The importance of the appointment of high calibre judges to the court was stressed, as was the importance of clear and consistent judgments. One step to achieving consistency in the court’s jurisprudence was seen to be through the removal of the words “unless one of the parties to the case objects” from article 30, thus making referral to the Grand Chamber entirely at the discretion of the court in cases which raise “a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the court”.

Stressing the importance of continuity through a stable judiciary, the conference declared it “undesirable for any judge to serve less than the full term of office”. The term of office provided for in the Convention is nine years. Previously article 23(2) declared the age of retirement of judges to be 70, but this is to be replaced with the requirement that judges must be no older than 65 when they commence their term in office, thus raising the retirement age to 74.

F. Execution of judgments of the court

Noting that each state party has undertaken to abide by the final judgments of the court in any case to which they are a party, the conference emphasises the role of the Committee of Ministers in the effective supervision of judgments. The Declaration calls on the Committee to refine its supervision procedures and consider whether “more effective measures are needed in respect of states that fail to implement judgments of the court in a timely manner”.

The Declaration further calls on states parties to ensure rapid execution of the court’s judgments.

G. Longer term future of the Convention system and the court

The states parties emphasised the importance of the effective implementation of the Convention at the national level, thus allowing the court to focus on “serious or widespread violations, systematic and structural problems, and important questions of interpretation and application of the Convention”.

The conference further committed itself to the programme set out by the Interlaken Conference and called on the Committee of Ministers to reach an interim view by the end of 2015 on additional reforms to the application process of the court and ways to reduce its caseload whilst preserving the Convention system in “essentially its current form”.

H. General and financial provisions

The member states concluded by calling for a swift and successful conclusion to the accession of the European Union to the ECHR believing that such a move will “enhance the coherent application of human rights in Europe”.

Commentary

Much emphasis has been placed by the British Government on the inclusion of the principle of subsidiarity and the doctrine of margin of appreciation in the preamble to the conclusion, as though it in some way alters the position of the court in relation to the member states. Given the current Government’s position on the European institution and human rights themselves, it can be seen as a political message on its part, but as both principles were created and developed by the court it is unclear what effect this amendment will have.

The principle of subsidiarity has always been the premise behind the Council of Europe and the ECtHR: states parties should be protecting human rights nationally. The calls for states parties to secure to everyone within their jurisdiction the rights contained within the Convention and to provide an effective remedy at a national level are obligations that already exist under the ECHR and Council of Europe system. The Brighton Declaration can then perhaps be seen as offering encouragement to those states that have not yet been able to achieve this.

The recognition that more judges and more funding may be required is welcomed as a practical solution to the caseload of the court, although it is not disputed that more needs to be done at the national level to ensure human rights are protected.

It is encouraging that the Committee of Ministers is being asked to consider whether additional measures should be introduced in respect of states that fail to implement the judgments of the court in a timely manner.

Concerns about the conference have been raised by human rights NGOs, as well as by Sir Nicolas Bratza, current President of the ECtHR and British judge, over the potential scope of the reforms. Sir Nicolas was quoted as saying that the court was “uncomfortable with the idea that governments can in some way dictate to the court how its case law should evolve or how it should carry out the judicial functions conferred on it”.

The significance of the Brighton Declaration remains to be seen in practice. In itself it does not contain substantial changes to the ECtHR, but can be seen as a starting block for further reforms. Undoubtedly the workload of the court must be addressed, but the right of individual petition must be preserved as well as the independence of the court.