The Brighton Declaration and the “meddling court”

The Brighton Declaration is the latest Declaration (see previously the Interlaken and Izmir Declarations) on the future (and reform) of the European Court of Human Rights made on behalf of the 47 member States to the Council of Europe, the parent organisation for the ECHR. Brighton was the venue, the United Kingdom having taken up the six month Chairmanship of the Committee of Ministers of the Council of Europe late last year.

The workload problem

So what was agreed? A nine page, highly influential Declaration, building on Interlaken and Izmir, which is primarily concerned with trying to make the Court system sustainable, since it is overwhelmed by the number of applications reaching it. Over 150,000 applications are currently pending before the Court.

Read some media reports and the impression could be gained that this huge number, and the inevitable case processing delays associated with it, is entirely the Court’s fault. However, one should take into account the fact that from the 1990s onwards the member States to the Convention took the political decision to open up the Court to all of Europe (bar Belarus). Hence we have an institution today which is accessible to some 800 million people from 47 different jurisdictions. The statistics reveal that almost 70% of pending applications originate from six States: Italy, Poland, Romania, the Russian Federation (approximately 30% alone), Turkey and the Ukraine.

So we have a Court that is simply overwhelmed by its workload, reflecting the immense task it has been asked to do by the member States. It must be stressed then that much of the Declaration is concerned with common sense and non-controversial provisions aimed at ensuring that all States properly implement Convention rights. If so, far fewer well-founded applications would need to be made to Strasbourg.

The Declaration welcomes and further encourages the array of measures that have already been put in place by the Court in recent years making it more efficient when it comes to tackling the mountains of ill-founded (by far the majority) and well-founded applications it receives. Indeed the Court is expected to become even more efficient now that Protocol 14 is taking full effect (see para 6 of the Declaration). Note, however, how politics played a part here too. Protocol 14 was completed in 2004 but did not enter into force until 2010, much of the delay occurring because Russia blocked its implementation by refusing to ratify it.

Subsidiarity

The principle of subsidiarity reflects the idea that the States have the first responsibility to protect Convention rights domestically, and that, consequently, if so, few well-founded cases should go to Strasbourg. As para 3 of the Declaration puts it:

 “The States Parties and the Court share responsibility for realising the effective implementation of the Convention, underpinned by the fundamental principle of subsidiarity. The Convention was concluded on the basis, inter alia, of the sovereign equality of States. States Parties must respect the rights and freedoms guaranteed by the Convention, and must effectively resolve violations at the national level. The Court acts as a safeguard for violations that have not been remedied at the national level. Where the Court finds a violation, States Parties must abide by the final judgment of the Court”.

The Declaration and British views on the meddling Court

The hostile attitude taken towards the ECHR by some British politicians, and the press, gave rise to speculation that the United Kingdom might use its position to secure a Declaration that reduced the Court’s power and influence. This intensified when a draft version of the document was leaked a couple of months ago (see here, and here). Amongst other things the draft proposed a new, restrictive admissibility criterion (although only as one of several alternative proposals), and it included passages which read like a subtle attempt to water-down the Court’s substantive jurisdiction (see here).

In the final Declaration the plans for the new admissibility criterion have been dropped, although certain amendments to the provisions on admissibility are proposed (see para 15(a) and (b)). There is also a statement to the effect that the Court should employ its existing admissibility criteria in a way that clearly respects the principle of subsidiarity (para 15(d)). Sir Nicolas Bratza, the Court’s President welcomed this in his speech at Brighton, noting that it conforms with existing Strasbourg practices on admissibility.

The draft version of the Declaration proposed that the margin of appreciation and principle of subsidiarity be written in to the Convention text in some way. NGOs were highly critical. At the start of the Brighton gathering Sir Nicolas Bratza stated:

In order to fulfil its role the European Court must not only be independent; it must also be seen to be independent. That is why we are, I have to say, 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.

With specific reference to the margin of appreciation, he argued that this was “a variable notion which is not susceptible of precise definition”. It was in part for that reason that the Court had “difficulty in seeing the need for, or the wisdom of, attempting to legislate for it in the Convention, any more than for the many other tools of interpretation which have been developed by the Court in carrying out the judicial role entrusted to it”.

The final version of the Declaration is certainly more nuanced than the draft as regards what it says about the margin of appreciation (compare paras B10 and 11 with Draft Declaration paras C15-17). However, it is agreed that “for reasons of transparency and accessibility, a reference to the principle of subsidiarity and the doctrine of the margin of appreciation as developed in the Court’s case law should be included in the Preamble to the Convention” (para 12(b) – the Draft Declaration had called for “express inclusion” of the doctrines “in the Convention”). An amending instrument will be prepared by the end of 2013. A key question, of course, will be how this new “reference” to the margin of appreciation/ principle of subsidiarity will be worded.

In due course it will fall to the judges to consider what significance, if any, should be attached to the amended preamble. Opinions may well vary, not least of all as the Brighton Declaration was agreed by 47 States, so it is unrealistic to think that there was any single view as to why it was regarded as necessary to make this amendment.

On the one hand, it could be argued that the amended preamble simply confirms the status quo on the margin of appreciation and subsidiarity, for, as the Declaration puts it, “reasons of transparency and accessibility”. Judges taking that view will be able to argue that Brighton changes nothing; they would say the amendments made to the preamble are largely symbolic.

Others may see it differently. In those cases when the application of a margin of appreciation is critical, it might be insisted that there was a broader significance to amending the preamble. It could be argued that at Brighton the States saw fit not just to simply remind the Court about the margin of appreciation via a statement in a Declaration, but to do so by actually amending the preamble, a step taken by the 47 States which was highly significant (they would argue). Consequently it might be argued that any debate about the scope of the margin of appreciation should be resolved in the State’s favour.

There are many other aspects to the Brighton Declaration – for example, and very importantly, the possibility of a new advisory opinion procedure – and it should be noted that this short note has only managed to highlight a few of the key issues. For excellent analysis of the Declaration’s other features, see Noreen O’Meara’s comments here.

Ed Bates, Senior Lecturer in Law, University of Southampton, is the author of ‘The Evolution of the European Convention on Human Rights’, Oxford University Press, 2010.

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14 thoughts on “The Brighton Declaration and the “meddling court”

  1. so who cares about the childrens human rights, no one, and so children will continue to go unheard in the courts with no rights what so ever, with being stolen and sold in their thousands to create jobs and billions of pounds, then 49% of kids from care end up in the prison system, and still have no human rights, the only human rights in the UK are for the people not born in this country of which if i was them i would want to go back from where ever they came from, I am not being racist, i was born in the uk and since i was 19 years of age I have been ashamed of this so called British Empire, which is no more. Perhaps with all the talk of human rights for adults some one may pick up on human rights and fight for justice for the children who are stolen daily. Prisoners have more rights then any one child in the care system.

  2. If the UK politicians weren’t so stupid we would not have heard anything of he prisoners votes debacle?
    All that was needed was to ask the rpisoners who wanted to vote and the have their home town’s vote paper manager send them their papers and the rpidon return them for counting.
    This would have taken minimum time and trouble as most prisoners are in jails close to home and in fcat how many of these prisoners would have been bothered to ask for the papers anyway?
    Similarly my case is in ECHR because a Little Hitler decided to trample on my medcial needs even though the CGHR has ruled that ulamwful in several previous judgements.
    SO, WE THE PEOPLE NEED STRASBOURG!

  3. What is the point of perpetuating this system of ‘justice’? We have now reached the point at which newly qualified law graduates (some working in their second or third language) are employed as interns to ‘screen out ‘ cases (ostensibly under the direction of a single judge). Our human rights are therefore being administered by foreign students with TEFL certificates- and heaven help the poor, as any bundle from a litigants in person is dumped straight away – what are they likely to do if their case is ‘screened out’? – phone a solicitor??????.
    The appalling volume of applications from the UK does not (as I have heard several members of the previous and current UK governments attempt to suggest) merely represent an increase in the number of fatuous cases being forwarded to Europe at all – it reflects the fact access to justice in the UK court system is virtually non existent for those with low incomes in this country.
    Even those with a right to Legal Aid cannot secure the services of a Solicitor in their own country – why perpetuate this farcical European court and its pretences?

  4. Hi Ed – Very interested by your statement that Protocol 14 provisions will help
    “when it comes to tackling the mountains of ill-founded (by far the majority) ..applications (the court) receives”

    Who decides an application is ‘ill founded’? Where is the figurework to substantiate your statement that the majority of applications are ‘ill founded’?

    It implies 1 ) all cases have been fairly and impartially assessed in the first place, and that 2) the majority of those rejected have been found to be ill-founded.
    Can you source the QC survey of rejected cases, along with the breakdown of the reasons why each case was assessed as ‘ill founded’ and post it here please?

    Without it, I don’t see you can make this statement……

    • Dear Lofthouse J
      I’m sorry I can only be brief for now. However, when I referred to “applications” I meant just that, i.e. applications made by individuals to Strasbourg under Art 34 ECHR. They have to be processed by the Court, sitting in various formations.
      When I said “ill-founded”, I meant “manifestly ill-founded” (Art 35(3)(a), but should have been clearer, as it would have been more accurate to say “inadmissible” (however, I understand that most inadmissible cases are declared “manifestly ill-founded” – see below). As to my reference to “well-founded” applications, many of these are so-called “repetitive cases” (up to 60%, see below).
      I do not have exact figures at my fingertips (for full details of Court’s statistics see here: http://www.echr.coe.int/ECHR/EN/Header/Reports+and+Statistics/Statistics/Statistical+data/ ). Off the top of my head in 2010 around 38, 000 applications were declared inadmissible and 2,500 declared admissible.
      Allow me to cite an extract from a recent Parliamentary Assembly report (AS/Jur (2011) 44, 4 November 2011 – Committee on Legal Affairs and Human Rights “Guaranteeing the authority and effectiveness of the European Convention on Human Rights”), at para 11.
      “At present, there are over 25,000 cases pending before the Court, with more than 55,000 new applications allocated to a decision-making body each year, while the Court is at best able to deliver slightly less than 2,000 final judgments per year.More than 90% of these complaints are declared inadmissible, mostly as manifestly ill-founded, and of the remaining admissible cases, more than 60% are repetitive, or derive from the same cause of action as in cases previously ruled to be in violation of the Convention. Given the volume of incoming complaints, the necessary filtering of inadmissible and repetitive cases has resulted in the diversion of the Court’s scarce resources away from meritorious claims”.
      With best wishes
      Ed

  5. Artcle 19 of Protocol 14 mentioned above states the following: ‘This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date on which all Parties to the Convention have expressed their consent to be bound by the Protocol, in accordance with the provisions of Article 18.’
    In light of the current controversy over the Qatada case, it would be interesting to learn from the adoption and formal execution dates for Protocol 14 just how the 3 months period actually worked in that case, as it establishes a precedent.

  6. Protocol 14 allows “3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that :a. the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or
    b. the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

    The fact that the court has decided to allow itself to ‘screen out’ cases is in no way the same as demonstrating that ‘the vast majority of applications are ill founded’.
    Where IS that QC document? Doesn’t the European Court have to hold some sort of ISO certification?

  7. The Interlaken process started its life as the baby of the United Nations, and its objective is to apply sanctions to rogue or pariah States to get them to toe the line. The Council of Europe adopted this baby for the Interlaken Conference, the aims being reform of the European Court of Human Rights and reforms needed in some Member States of the Council of Europe. It is this second aim which appears to be conveniently ignored by the UK.

    The elephant in the room is that the vast majority of cases backlogged in the ECtHR are repetitive cases as a result of Member States failing to fully comply with judgments against them decided by the ECtHR. For example, because the UK failed to fully comply with Hirst v UK (No2) there are now over 3,500 cases by convicted prisoners demanding the human right to vote which have been added to the backlog of cases before the ECtHR.

    The Committee of Ministers annual report on the supervision of the execution of the Court’s judgments reports that the number of cases where Member States have failed to fully comply with judgments has gone down. This is a good sign, but it does not let the UK off the hook. In just over 6 years the UK has gone from being a human right abuser in 1 case to being a human right abuser in over 3,500 cases.

    The final draft of the Brighton Declaration states: “The States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) reaffirm their deep and abiding commitment to the Convention, and to the fulfilment of their obligation under the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention”. Similar wording was also used in the Interlaken and Izmir Declarations. These are just empty words if no action is taken to actually adhere to them. Human rights which can be ignored at whim by a Member State amount to nothing.

    The UK is a human rights violator. It has just hosted a High-level Conference attended by representatives of Member States many of which are human rights violators too. The thought of this does not make me feel physically ill. Rather it makes me feel angry and sad.

    • John: you assert ‘the vast majority’ of backlogged cases are repetetive cases, whereas Ed asserts ‘the majority’ of backlogged cases are ‘ill founded’.

      Has the court actually conducted robust research on the rejected cases – they would need to have done so to even begin to justify student interns being allowed to ‘screen ‘ cases.
      …can either of you source an analysis of all rejected applications to date?

      • Lofthouse J: I have erred with the vast majority claim according to the CoM annual report for 2011: “At the opening of the Court’s judicial year in 2012, its President expressed his concern with respect to the problem raised by the 30 000 repetitive cases pending before the Court”. It remains a significant number. The majority of cases lodged before the Court fail to meet the admissability criteria.

      • The thing that concerns me is the lack of QC – no one appears to be monitoring the screeners or the screening process. To say cases have been ‘judged inadmissible’ is not the same as demonstrating they are inadmissible.

        Ed’s post quotes from the “Parliamentary Assembly report (AS/Jur (2011) 44, 4 November 2011 – Committee on Legal Affairs and Human Rights “Guaranteeing the authority and effectiveness of the European Convention on Human Rights”), at para 11.
        “At present, … more than 55,000 new applications allocated to a decision-making body each year, while the Court is at best able to deliver slightly less than 2,000 final judgments per year.More than 90% of these complaints are declared inadmissible…..”

        It does look remarkably like the fiscal imperative is the sole driving force for the increase in inadmissible applications. Either that, or 90% of the 55,000 applications dismissed per annum are a) presented by legal representatives who should be sacked as useless, or b) by litigants in person who cannot afford/secure legal representation.

        Either way, the sheer volume of cases being found to be ‘inadmissible’ is highly suspect , and someone should be taking a much much closer interest in it. The cost of this ‘upper court’ alone can only be justified if it genuinely maintains higher standards than those courts it claims to be above.

      • There are over 3,500 cases lodged before the ECtHR which are repetitive cases over prisoners votes. These are not inadmissible cases. When the ECtHR decided the pilot judgment case of Greens and MT v UK, the ECtHR stayed all the similar applications pending the UK fully complying with this judgment within the 6 months stipulated time limit. Then, incredibly, the Registrar of the Court granted the UK a stay of execution pending the outcome of Scoppola v Italy (yet another prisoner vote case)!

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