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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