History of Court Reform and related materials (2015) | Samuel Moyn | August 10, 2016


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History of Court Reform and related materials (2015)

European Court of Human Rights, History of the Court’s Reforms (2015)

Since the Court opened in 1959, the member States of the Council of Europe have adopted a number of protocols to the European Convention on Human Rights with the aim of improving and strengthening its supervisory mechanism. In 1998 Protocol No. 11 thus replaced the original two-tier structure comprising the Court and the Commission on Human Rights, sitting a few days per month, by a single full-time Court. This change put an end to the Commission’s filtering function, enabling applicants to bring their cases directly before the Court.

A second major reform to address the considerable increase in the number of applications and the Court’s backlog was brought about by the entry into force of Protocol No. 14 in 2010. This Protocol introduced new judicial formations for the simplest cases and established a new admissibility criterion (existence of a “significant disadvantage” for the applicant); it also extended the judges’ term of office to 9 years (not renewable).

Since 2010, four high-level conferences on the future of the Court have been convened to identify the means to guarantee the long-term effectiveness of the Convention system. These conferences have, in particular, led to the adoption of Protocols 15 and 16 to the Convention.

Protocol No. 15, adopted in 2013, inserts a reference to the principle of subsidiarity and the doctrine of the margin of appreciation into the Convention’s preamble; it also reduces from 6 to 4 months the time within which an application must be lodged with the Court after a final national decision.

2013 has also seen the adoption of Protocol No. 16, which will allow the highest domestic courts and tribunals to request the Court to give 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. Protocol No. 16 is optional.

The following is adapted from recent supplementation to Henkin et al., Human Rights (2009)

In November 2011, the United Kingdom assumed the Chairmanship of the Committee of Ministers of the Council of Europe and announced that it would make reforming the ECHR a priority.  The UK government’s relationship with the court had become contentious following the judgment in Hirst v. United Kingdom (No. 2), App. No. 74025/01, 2005–IX Eur. Ct. H.R. (Grand Chamber), in which a majority of the ECHR held that a British law denying convicted prisoners the right to vote contravened Article 3 of Protocol No. 1. The Hirst judgment was highly unpopular in the UK.  British Prime Minister David Cameron publicly stated that giving prisoners the right to vote “makes me feel sick.”  Alison Little, PM: Giving Prisoners Vote Makes Me Feel Sick, Daily Express (Nov. 4, 2010). Some British politicians and news media outlets heavily criticized other ECHR judgments as unduly interfering with domestic laws and practices.  By 2011, polls indicated that a majority of British voters favored the country’s withdrawal from the European Convention.  Sunday Times Survey Results, Feb. 10-11, 2011.

The public backlash against the Strasbourg Court in the United Kingdom colored the third high-level conference on the future of the ECHR convened in Brighton, England in March 2012.  A draft of the Brighton Declaration was leaked on the eve of the conference.  The draft included statements that many NGOs and academics—as well as some government officials and members of the court—viewed as weakening the ECHR’s review powers and calling into question its independence.  For example, one proposal would have deemed inadmissible any application which alleged violations of the European Convention that were substantially identical to those that a domestic court had previously considered.  Joshua Rozenberg, Leaked proposals set out Britain’s tough line towards Strasbourg, The Guardian, Feb. 28, 2012.

The final text adopts a somewhat more moderate approach.  High Level Conference on the Future of the European Court of Human Rights: Brighton Declaration (Apr. 19-20, 2012).  The Declaration reaffirms the member states’ “deep and abiding commitment” to the Convention, its institutions, and the right of individual petition, id. ¶¶ 1-2, and it recognizes their responsibility to ensure the effective domestic implementation of the Convention and to abide by ECHR judgments against them.  Id. ¶¶ 3-4.  The Declaration also reiterates recommendations adopted at the Interlaken and Izmir conferences to reduce the court’s workload and backlog of pending cases.  Other sections of the Brighton Declaration, however, propose to amend the Convention in ways that will arguably limit the ECHR’s authority.  These provisions include:

adding to the Convention’s preamble express references to the principle of subsidiarity and to the doctrine of the margin of appreciation—references that many observers view as a signal to the ECHR to give greater deference to member states, id. ¶ 12.b;
shortening the limitations period for individuals to file applications with the ECHR from six to four months, id. ¶ 15.a;
eliminating, from the “significant disadvantage” ground for declaring an application inadmissible, the safeguard clause that permits the ECHR to review the application if it “has not been duly considered by a domestic tribunal,” id. ¶ 15.c;
removing the parties’ ability to object to a Chamber’s decision to relinquish a case to the Grand Chamber, a venue considered more sympathetic to national governments, id. ¶ 25.d.

Supplementing these provisions are several statements that suggest, to greater or lesser degrees, that the ECHR should rein in its scrutiny of national governments:

an assertion that “the role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State’s margin of appreciation,” id. ¶ 11;
a recommendation that the ECHR “take a strict and consistent approach” to declaring inadmissible complaints that have “been duly considered by a domestic court applying the rights guaranteed by the Convention in light of well-established case law of the Court including on the margin of appreciation,” id. ¶ 15.d;
an invitation to the Court “to have regard to the importance of consistency where judgments relate to aspects of the same issue, so as to ensure their cumulative effect continues to afford States Parties an appropriate margin of appreciation,” id. ¶ 25.c; and
a timetable for the Committee of Ministers to determine whether existing reforms have “proven to be sufficient to assure sustainable functioning” of the ECHR, or whether “more profound changes are necessary,” id. ¶ 34.

On 24 June 2013, the Council of Europe opened for signature Protocol No. 15 to the European Convention, which implements the first four bullet points listed above.  In particular, once ratified by all Contracting States, Protocol No. 15 will add to the Preamble to the European Convention the following paragraph:

“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;”

The Explanatory Report accompanying the Protocol No. 15 describes this amendment as follows:

7.  A new recital has been added at the end of the Preamble of the Convention containing a reference to the principle of subsidiarity and the doctrine of the margin of appreciation.  It is intended to enhance the transparency and accessibility of these characteristics of the Convention system and to be consistent with the doctrine of the margin of appreciation as developed by the Court in its case law.  In making this proposal, the Brighton Declaration also recalled the High Contracting Parties’ commitment to give full effect to their obligation to secure the rights and freedoms defined in the Convention.

8.  The States Parties to the Convention are obliged to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, and to provide an effective remedy before a national authority for everyone whose rights and freedoms are violated.  The Court authoritatively interprets the Convention.  It also acts as a safeguard for individuals whose rights and freedoms are not secured at the national level.

9.  The jurisprudence of the Court makes clear that the State Parties enjoy a margin of appreciation in how they apply and implement the Convention, depending on the circumstances of the case and the rights and freedoms engaged.  This reflects that the Convention system is subsidiary to the safeguarding of human rights at national level and that national authorities are in principle better placed than an international court to evaluate local needs and conditions.  The margin of appreciation goes hand in hand with supervision under the Convention system.  In this respect, the role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State’s margin of appreciation…

In 2009, the ECHR adopted a Priority Policy for processing applications.  “[T]he new policy establishes a clear order of adjudication at a time when the Court’s pending caseload exceeds 130,000 applications, a number which rose by 17 percent in 2010.”  Michael Becker, European Court Institutes Priority Policy For Hearing Claims, Hum. Rts. Br. (Mar. 2011).  The essence of the new policy is expressed in amended Rule 41 of the Rules of Court:  “In determining the order in which cases are to be dealt with, the Court shall have regard to the importance and urgency of the issues raised on the basis of criteria fixed by it.  The Chamber, or its President, may, however, derogate from these criteria so as to give priority to a particular application.”  To implement this policy, the Court will now place each pending claim into a category—number numbered I through VII—based on the level of importance set out in the following table: https://perma.cc/PBJ9-9Y78

European Court of Human Rights, Priority Policy.

In a 2012 report adopted by the Parliamentary Assembly characterizes the Priority Policy as a “bold step,” which, “if implemented rigorously, will ensure that the most serious cases and the cases which disclose the existence of widespread problems capable of generating large numbers of additional cases are dealt with more rapidly.”  The report further states that the policy will “re-focus discussion away from the obsessive concern with the rising backlog of applications before the Court and instead grapple with problems of ‘persistent defaulters’ in which serious human rights problems exist.”  Report of the Committee on Legal Affairs and Human Rights, Guaranteeing the authority and effectiveness of the European Convention on Human Rights, para. 60 (Jan. 3, 2012) (adopted by the Parliamentary Assembly on Jan. 24, 2012).

According to one commentator, however, the “subjective nature of labeling priorities raises concerns regarding the introduction of bias into the process, and could possibly encourage violators to commit low-priority offenses with no fear of punishment.”  For example, should an individual “who was deprived a fair and public hearing be any less aggrieved because his claim falls fourth on the spectrum?  What about those who have been denied their rights to free speech and religion, who now may wait years or decades behind those whose claims are deemed ‘more urgent?’”  Becker, supra.


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August 10, 2016

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Samuel Moyn

Harvard Law School

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