Backlog, backlash and beyond: debating the long term future of human rights protection in Europe – Alice Donald

14 April 2014 by Guest Contributor

Around 150 delegates, including representatives of all 47 Council of Europe states and two judges of the European Court of Human Rights, met in Oslo last week. Their mission? To reflect on the protracted process of reforming the European Convention system and imagine what it might look like in 2030.

Non-government organisations and academics (myself included) joined the insiders to engage in ‘blue-skies’ thinking, despite the dense fog that enveloped the hilltop venue.

The end of the beginning

The Strasbourg Court as we know it came into being in 1998 with the entry into force of Protocol 11 to the Convention. Subsequent reform was driven by two closely-linked imperatives: first, to reduce the backlog both of applications and non-executed judgments and secondly, to reinforce the subsidiary role of the Court vis-à-vis national authorities.

As regards the former, notable developments include the steps taken since 2010 under Protocol 14 to increase the efficiency of judicial decision-making; and (more controversially) the introduction of a shorter deadline, narrower admissibility criteria, and stricter conditions for applicants. The post-judgment process of implementation was also reformed to permit more intensive supervision by the Committee of Ministers (the Council of Europe’s executive arm) of urgent, complex or inter-state cases and lighter touch supervision of the rest.

The principle of subsidiarity – according to which national governments, legislatures and courts are primarily responsible for guaranteeing and protecting human rights at the domestic level – underpinned the declarations at Interlaken, Izmir and Brighton, while Protocol 15 inserted it into the Convention’s preamble (along with the ‘margin of appreciation’, which gives states discretion as to how they fulfil their Convention obligations). Meanwhile, Protocol 16 aims to facilitate sound interpretation and application of Convention rights domestically by allowing the highest courts of states that ratify it to request the Strasbourg Court to provide non-binding advisory opinions.

Thus, as the Court’s President Dean Spielmann noted, the Convention system has reached the ‘end of the beginning’ of its journey towards 2030. But with what results?

Backlog  

Statistics loomed large in Oslo. The good news is the dramatic reduction in the number of pending cases, from a peak of more than 160,000 in September 2011 to around 96,000 at the latest count, thanks to more streamlined methods (judicial and technological) for filtering out clearly inadmissible applications.

The bad news is that the remaining backlog will not be so readily eliminated, since it contains a higher proportion of cases resulting from structural or systemic dysfunctions within states. These include some 40,000 repetitive cases, where multiple applications arise from an already identified problem.

President Spielmann noted that the filtering mechanisms used to shed the Court’s docket of inadmissible applications are now being deployed to reduce the accumulation of repetitive cases. Yet, with fresh applications arriving at a steady rate of some 65,000 a year, the risk remains that repetitive cases, together with thousands of other meritorious but low priority cases, may pile up and erode the Court’s credibility anew.

Backlash

Several speakers identified political assaults against the Court as a greater threat than the institutional pressures it faces – and one scarcely foreseen when the reform process began.

The ‘backlash’ narrative is familiar: unchecked judicial activism by a power-hungry foreign Court threatens democratic decision-making at the national level. Yet, as delegates in Oslo reflected, the Court is variously criticised both for lacking respect for well-established democracies and for unfairly granting such states a wider margin of appreciation – inconsistencies which indicate the politicised and parochial nature of the reform debate in some states.

Speakers singled out as especially damaging the attacks on the Court by UK politicians, judges and newspapers and the UK’s threat to consider withdrawal from the Convention. NGOs from Central and Eastern Europe implored states to desist from such critiques. They voiced growing fears that Russia, stung by the Court’s response to its actions in Crimea, might follow suit. This might take the form of Russia withdrawing its delegation from the Parliamentary Assembly of the Council of Europe (having already had its voting rights suspended); seeking to weaken the Convention system from within; or leaving it and establishing a rival Eurasian human rights mechanism (mirroring the actions of Ecuador, Venezuela, Bolivia, and Nicaragua within the inter-American human rights system).

Short of such precipitous action, the Court might in future face cuts to its budget (for which it is dependent on member states); the further politicisation of judicial appointments; or more frequent defiance of its judgments.

Constitutional versus individual justice?

Discussion about whether the Court can, or should, continue to act as the guardian of both individual and constitutional justice has featured throughout the reform process. The Brighton Declaration (para 13) reaffirmed the right of individual application as a cornerstone of the Convention system. Yet the inter-governmental Steering Committee for Human Rights (paras 34-37) had already begun to reflect on fundamental reform which might create a radically different Court, delivering fewer judgments relating only to widespread violations, systemic and structural problems, and important questions of the interpretation and application of the Convention.

The former President of the Court, Luzius Wildhaber, is a prominent advocate of such reform. Noting that the ‘serious disadvantage’ criteria, introduced in 2010 to weed out less severe cases, had made little impact, he argued in Oslo that the Court should adopt a ‘seriousness’ threshold, giving it greater discretion to select which applications would proceed to judgment – and to settle them not just for the benefit of individual applicants but also for actual and/or potential victims in the same situation.

Wildhaber lamented what he called the ‘obsession’ with the ideal that each of the 60,000-plus applications to the Court annually could be treated with the same degree of diligence and transparency: the more honest position was to strive for ‘real, effective and rapid remedy for some, but not all, individuals’. He proposed that ‘tailor-made’ solutions based on transparent criteria be devised for states with the most problematic records (six states – Ukraine, Italy, Russia, Turkey, Serbia and Romania – account for three-quarters of pending applications).

Other participants in Oslo saw nothing conflictual in the Court’s pursuit of both individual and constitutional justice and strongly rejected any curtailment of the right of individual petition. NGO speakers noted that the Convention speaks of the rights of ‘everyone’, without distinction. As one put it, the Strasbourg Court is a ‘court of very last hope for individuals – let us not disappoint them’.

Big bang?

Among the more radical proposals was the ‘unpicking’ of Protocol 11 in order to reconfigure the Court’s institutional structure. This might involve the creation of more than one court, or of specialised units designed to handle either individual applications involving well-established case law or cases raising matters of constitutional importance. Such root-and-branch redesign would also, it was argued, better equip the Court to carry out a third role that it has increasingly taken upon itself – the design of remedies (notably by means of the pilot judgment procedure, which the Court uses to identify and resolve structural violations).

There was no consensus in Oslo for a ‘big bang’ option. Rather, the journey to 2030 is likely to involve further procedural innovations to filter and prioritise cases. One proposal was to send cases of constitutional importance directly to the Court’s Grand Chamber. Another was to deal with minor and repetitive cases, and those involving settled case law, summarily via a screening panel, potentially disposing of hundreds of cases every week.

There was resistance from judges, governments and NGOs to Luzius Wildhaber’s proposal to repatriate repetitive cases. This was partly for ethical reasons, since it would be unconscionable to dispose en masse of cases that states could not be relied upon to resolve. Pragmatically, speakers argued that the accumulation of repetitive cases provides useful leverage at the domestic level – and that recalcitrant states might be further incentivised if they were made to bear the cost of processing repetitious cases.

However the Court’s procedures evolve, delegates in Oslo urged it to maintain transparency in the way that applications are handled. Some speakers were already concerned that the Court’s practice of rejecting a high proportion of ‘manifestly ill-founded’ applications without giving reasons compounds its perceived legitimacy problem, although others regarded this as unavoidable.

Running faster and spreading thinner  

In the absence of measures drastically to reduce its caseload, or an (unlikely) injection of resources from member states, the Court faces the prospect of, as one contributor put it, ‘running faster and spreading thinner’. Government delegates in Oslo were reminded that an external audit (para 297) of the Court in 2012 praised the Court for its economical use of resources, comparing it favourably with the European Court of Justice and the International Criminal Court, whose budgets are respectively five times and double that of the Court.

Judgment to justice

Not only the Court but also the whole Convention system was under the spotlight in Oslo. Attention focused especially on the role of the Committee of Ministers in supervising the implementation of judgments. Again, there is good news and bad. In 2013, for the first time, the number of judgments pending execution fell for the first time (p. 36), to around 11,000. Yet the number of non-executed judgments revealing structural or system violations continued to increase.

Officers of the Committee of Ministers insisted there was no ‘implementation crisis’, yet acknowledged that ‘pockets of resistance’ continued to impede the transition from judgment to justice. The inter-governmental supervision mechanism was criticised as being a ‘dark and closed room’, the solution to which was seen to be much greater openness both to civil society groups and applicants – the strongest constituencies of support for full and swift implementation. A more formal role in the supervision process was also advocated for the Parliamentary Assembly. Yet delegates had little appetite for a fundamental redesign of the supervision system.

The Committee of Ministers was encouraged to innovate; for example, by entrusting its bureaucracy to supervise routine cases bilaterally with states, leaving the Committee of Ministers to deal with more serious or complex judgments.

More urgently, it was urged to make more use of its existing tools to push stubborn states into implementation. Several speakers, including government delegates, argued for infringement proceedings to be made easier by lowering the two-thirds majority required before the Committee of Ministers can bring a case back to the Court where the state has failed to comply (a mechanism introduced in 2010 but never used).

Delegates also proposed ways of ensuring that the perceived illegitimacy of the Court within some states did not obstruct implementation; for example, by ensuring in the Court’s procedures that when a judgment has significant implications for a state’s legal order, or is likely to be especially contentious, it should command at least a two-thirds majority of judicial votes.

Towards 2030

Further significant changes are on the horizon for the Convention system. Will the accession of the European Union to the Convention prompt an avalanche of new cases to Strasbourg – or risk its domination by the EU?

What are the implications for the Convention system of austerity and cuts to social protection programmes across Europe?

How real is the risk of states withdrawing from the Convention?

I have extracted from the debate in Oslo some ground rules for reform.

First, ‘if it ain’t broke, don’t fix it’: reform should only be undertaken on the basis of clear evidence as to the nature of the problem, the impact of previous changes and the likely impact of new ones.

Secondly, talk of ‘reform’ can be perilous in the context of antipathy to external human rights supervision: changes must be driven by the core purpose of the Convention system – the protection of human rights – and not by the political interests of states.

Thirdly, listen to the quiet voices of the relatively powerless when reforms are being designed and not to any single voice, less still the loudest.

Finally, tread carefully: the Convention system is an exemplar and reforms which undermine it risk damaging human protection beyond European shores.

As I left Oslo, government delegates began two more days of deliberation. Let’s hope the fog lifted.

Dr Alice Donald is a Senior Research Fellow in the School of Law, Middlesex Universityis a Senior Research Fellow in the School of Law, Middlesex University

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