With just a month remaining of its six-month Chairmanship of the Council of Europe’s Committee of Ministers, the UK was determined to make its mark. The European Court of Human Rights (the Court) certainly created a lot of press attention (much of it negative hyperbole) in the weeks leading up to the High Level Conference on the Future of the European Court of Human Rights in Brighton, 18th-20th April. When a draft Declaration of proposed reforms from the UK was leaked in February human rights organisations, lawyers, and NGOs searched its contents for any potential threat to the Court and human rights in Europe.
There was much consensus among these groups about the draft Declaration: some positive reforms overshadowed by potentially harmful limits on the Court’s powers. Most agreed that the Court’s huge backlog of cases – currently around 150,000 – needed to be addressed. Indeed, this had already been suggested in previous Conferences in Switzerland and Turkey and the figure was reducing. However, as mentioned in a previous blog, the solution is not simply a matter of making the Court more efficient. Five of the forty-seven member states represent the majority of those cases, highlighting a failure to implement the European Convention on Human Rights at national level rather than the inefficiency of the Court.
QCEA and many other concerned human rights organisations asked government representatives going to Brighton to preserve the precious role of the Court in defending human rights across Europe. The final Brighton Declaration kept a lot of the draft version in place, much of which was positive. For example, there was acknowledgement of the successful reforms made in 2010 and 2011 and an emphasis on the importance of fully implementing the Convention at national level. This was accompanied by an understanding that many countries need support to do this, both financial and legal. It is not enough to simply say it must be done: each of the Council of Europe’s institutions has to provide practical assistance.
Also unchanged was the new role for the Court in offering advisory opinions to member states before cases are concluded – potentially avoiding the need to resort to the Court. Here there is an important difference from the draft. Previously the UK had suggested that, once a member state had taken an advisory opinion into consideration, the individual would not have the right to take their case to the Court. Thankfully, this caveat has been removed.
Much of the draft version has, however, been altered. Not surprising when we consider that representatives from forty-seven countries had to agree.
Positive changes include the wording of the right of individual application. Previously described as ‘a key component’ this fundamental aspect of the Court is now a ‘cornerstone of the system for protecting the rights and freedoms’ in the Convention. There is also awareness of the need for greater communication at all levels of the Court’s judgments, more translations of the Court’s documents, and greater public engagement. These changes should help reduce the number of repetitive cases and increase understanding among the public about the role of the Court in protecting human rights.
The Declaration also includes changes which, though less damaging than proposed in the draft, are still a cause for concern. Firstly, in the UK draft there was a proposal for reducing the time limit for applications to the Court to either two, three, or four months (from the current six months). The final decision was to reduce it to just four months. Though this is unlikely to affect applicants in those member states with relatively good human rights records, people in countries where the Court is needed most, may struggle to get their application in within four months.
Secondly, the draft suggested including two key principles of the Court – margin of appreciation and subsidiarity – into the wording of the Convention. This alarmed many human rights organisations. Enshrining these two terms in the Convention would limit the flexibility that the Court has in passing judgments, transferring much more power to member states in interpreting the Convention. However, the latest Declaration has two important changes. Determining margin of appreciation is now described as entirely the role of the Court and both terms are to be included in the Preamble to the Convention rather than in the Convention itself. Though it is not yet clear what effect this will have, it is certainly less restricting than that proposed in the draft.
As most of the changes will not come into force until the end of 2013 we must wait and see what shape the Court will take in the future and how this will affect our human rights. An important point to remember, however, is that these reforms will not have the same impact on everyone. Countries with few human rights abuses against their name will see little difference compared to countries such as Russia and Turkey which still have a long way to go in fully implementing the Convention and protecting human rights. The Court’s unique but complex role in defending the human rights of every one of its 800 million citizens must not be sacrificed.