The United Kingdom, in its capacity as Chair of the Council of Europe’s Committee of Ministers, is organising a conference on the future of the European Court of Human Rights (ECtHR) in Strasbourg. From 18th to 20th April representatives from the 47 Member States of the Council of Europe will gather in Brighton to discuss how to ensure that the human rights of their 800 million citizens are fully protected. Since the draft Brighton Declaration was leaked to the public in early March, NGOs, lawyers, and journalists have been examining the changes proposed by the UK. On the whole, the reactions have not been positive for the future of human rights protection in Europe.
Before examining the encouraging and worrying elements of this draft Declaration, some context is needed. The Brighton Conference follows on from two previous events: Interlaken, Switzerland, in 2010, and Izmir inTurkey last year. At these conferences it was agreed that reform was needed. The ECtHR had a huge backlog of cases which was increasing year on year and affecting the functioning of the Court. Many of these are repetitive cases where a small number of countries have not fully addressed particular human rights issues at national level.
At both Conferences two key principles were reiterated: that whatever changes were made, the ECtHR should remain available as a measure of last resort to all Council of Europe citizens and that the Court should act as a backstop check on human rights abuses by member states.
What is the UK Proposing?
The draft Brighton Declaration threatens both of these principles. First, it suggests reducing the time limit for applications to the Court from six months to two, three, or four months. Second is the proposal to change the Court’s admissibility criteria – by which cases are able to be considered by the ECtHR – so that, unless in exceptional circumstances, an application to the Court is admissible if the issue has already been sufficiently examined by a national court. Third, and potentially most damaging for the functioning of the ECtHR, national courts could refer potential human rights issues to the Strasbourg Court. The Court would then deliver an advisory opinion which the national courts would have to include in the case. Having consulted the ECtHR in this manner and applied the recommendations at national level, the individual applicant would not be able to take any further case to Strasbourg even if they still felt their human rights were threatened.
The UK is suggesting these changes in order to protect the ECtHR’s ability to swiftly and effectively address serious human rights violations within Europe, and that is a laudable goal. If they were implemented, the changes would arguably have only minor implications for citizens in countries like the UK where only a very small number of cases pass the initial admissibility review. However, many countries do not apply the European Convention on Human Rights so thoroughly. For example, at the close of 2011 there were over forty thousand pending applications from Russia. Changes such as cutting the time limit for applications and limiting admissible applications would weaken the ability of the Strasbourg Court to protect people in countries where human rights are not adequately protected at national level.
These worrying aspects of the draft Declaration must not turn into an argument against any reform. There were also several very encouraging recommendations in the document which, if implemented, would help to protect, not damage, human rights in Europe. Establishing National Human Rights Institutions, for example, which help national governments to ensure that their laws are compatible with the European Convention on Human Rights would reduce the number of repetitive cases reaching the Court in Strasbourg. A greater focus on training public officials on the European Convention on Human Rights is also positive. The ECtHR is a court of last resort and to protect that role member states have to fully integrate the Convention into national law. Whilst the majority of Europe has accomplished this, these recommendations go some way towards ensuring the rest catch up.
Brighton and Beyond
Firstly, it is significant that the draft Brighton Declaration had to be leaked for NGOs to have the opportunity to offer their opinion on it. Human Rights organisations could offer valuable insights into how to further protect human rights in Europe. Their opinions should not be ignored. Secondly, some of the more drastic changes suggested in the document are unnecessary. At the end of 2011 the ECtHR had a backlog of 151,624 cases – undeniably a huge figure. However, the changes made at Interlaken and Izmir are already bearing fruit and it is estimated that this backlog will be cleared by 2015. A closer look at the figures also shows that the problem is not the level of admissibility. Five countries –Russia, Romania, Turkey, Italy and Ukraine – account for over sixty per cent of these pending cases (ranging in order from 40,225 in Russia to 10,271 in the Ukraine). This suggests instead that the problem is a lack of proper application of the European Convention on Human Rights at national level. There are positive elements in the draft Brighton Declaration which attempt to address this. It is hoped that these aspects will be kept and those which threaten the role of the ECtHR will be discarded.
The European Court of Human Rights is crucial for the protection of human rights. Whichever country you come from, your rights are defended, without prejudice, against any threat. We cannot afford to make any reforms which may threaten this vital safety-net or weaken our defence against human rights abuses throughout Europe.