Draft declaration on British ECHR reform plans leaked – Antoine Buyse

29 February 2012 by Guest Contributor

Updated | The French translation of the draft of the so-called ‘Brighton Declaration’ (the seaside city where state parties to the ECHR will meet in April to discuss reforms of the Court and the Convention) has been leaked after the UK government refused to circulate the text publicly.

Last week, the draft was presented to the Ministers’ deputies of the Council of Europe. Amongst other, the draft suggests to include the principle of subsidiarity and the margin of appreciation explicitly in the Convention text – I am not sure what that would change to current practice, unless it becomes mandatory for the Court to give a margin of appreciation.

Also, the time to lodge complaints after all domestic remedies have been exhausted would possible be reduced from the current six months to two, three or four months. One of the most controversial aspects is that the Court would be barred from considering cases “identical in substance to a claim that has been considered by a national court”, according to BBC reporting, “”unless the national court “clearly erred” in its interpretation, or raises a serious question affecting the interpretation of the Convention” according to the Open Society Institute. This would carry in it the danger of almost completely taking away any substantive role for the European Court of Human Rights.

It also suggests the possibility of appointing more judges to deal with a larger amount of cases and to introduce a possibility of advisory opinions to national courts, somewhat comparable to preliminary rulings of the European Court of Justice.

Thus, the proposals seem to present a very mixed bag (many more than I could mention here) of efficiency enhancing measures and potentially dangerous ideas which would undermine human rights protection by curtailing the Court and access to it for victims.

Obviously, for Convention changes unanimity is needed. Even if the United Kingdom, and in its slipstream the Netherlands, seem to take a tough stance towards the Court, Belgium, Germany, and Austria seem to be opposed to curtail the Court’s supervisory role in human rights protection. France seems to linger between indifference and sympathy for the British plans, according to Le Monde.

According to the Open Society Justice Initiative, this is the Court’s own position [UPDATE – the court’s full response can be read here]:

Opinion of the Court 

On 20 February 2012 the European Court of Human Rights sitting in Plenary issued an opinion in preparation for the Brighton Conference, responding to the proposals of State Parties. The Court does not offer a definition of subsidiarity, but does suggest that States must reaffirm their commitment to the system of human rights protection, which requires “making every effort to secure the Convention rights and freedoms at national level and accepting that these efforts are subject to judicial scrutiny at European level”. In a separate speech the President of the Court said that subsidiarity and the margin of appreciation should not be put in the Convention. The Court is unconvinced that the proposed new admissibility criteria “will have any significant impact on the Court’s case-load” as such cases would require “systematic and thorough examination.” Such options might be considered for the long-term reform of the Court, together with the possibility of the court selecting cases for adjudication, where there was an option of referring the cases not taken to another international process or to a national mechanism. The Court identifies four types of cases where reform is needed, and makes initial proposals for reform.

* Inadmissible Cases (Categories VI and VII). The Single Judge procedure will continue to be used. In addition, the Court is considering expanding the new filtering procedure to all countries and applying the six-month rule more strictly, which could be “reduced considerably” given modern communication methods.

* Repetitive Cases (Category V). There are 34,000 of these cases in the system. The Court proposes that a list of the cases is referred to the State concerned for them to be settled in an appropriate way, with judgment to be given in default if redress is not given.

* Non-repetitive, non-priority cases (Category IV). (19,000 cases). The Court proposes to extend the use of the summary procedure for cases that can be dealt with by “Well-Established Case-Law” currently used only for repetitive cases.

* Priority Cases (Categories I, II, III). (6,000 cases). Some will also be repetitive, such as prison condition cases.

So who knows, we might – after all the obstacles of getting the previous change to the Convention ratified – be on our way to a Protocol 15! To be watched closely…

This post first appeared on the ECHR Blog and is reproduced with permission and thanks

UPDATE, 29 February 2012 – You can read the court’s full response to the proposal here and President Sir Nicolas Bratza’s speaking note to the Committee of Ministers here.

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