|Wilton Park, Sussex|
Updated Monday 23rd April
The Council of Europe has published the outcome of the High Level Conference on the Future of the Europe Court of Human Rights - The Brighton declaration - which will lead eventually to some important changes. The declaration merits full reading before a full analysis can be properly attempted. At first glance, the changes appear to be few in the short term but it seems likely that this declaration will eventually be seen as just the starting point for fundamental reforms. Some basic points may be stated:
The Preamble notes that the European Court of Human Rights has made an extraordinary contribution to the protection of human rights in Europe for over 50 years. The declaration reaffirms commitment to the Convention and the right of individual petition to the Court. The word "subsidiarity" - pressed for by the UK - appears in para. 3 of the Preamble - " The States Parties and the Court share responsibility for realising the effective implementation of the Convention, underpinned by the fundamental principle of subsidiarity and points out that the court acts as a safeguard for violations that have not been remedied at a national level. Finally, the preamble notes the efficiency improvements made at the court under Protocol 14 and, in particular, to address the number of inadmissible applications but, further measures are needed to ensure that the Convention system remains effective and can continue to protect the rights and freedoms of over 800 million people in Europe.
The remainder of the declaration divides into:
A- Implementation of the Convention at National Level - in this area it may be thought that the UK "ticks all the boxes" but it is likely that on deeper analysis there is room for improvement;
B- Interaction between the court and national authorities - here it is noted that the margin of appreciation reflects that the Convention system is subsidiary to the safeguarding of human rights at national level;
C- Applications to the court - by the end of 2013 the period of time allowed for application to the court will reduce from 6 months to four
D- processing of applications - The number of applications made each year to the Court has doubled since 2004 and many applicants, including those with a potentially well-founded application, have to wait for years for a response. In light of the importance of the right of individual application, the Court must be able to dispose of inadmissible applications as efficiently as possible, with the least impact on its resources. The Court has already taken significant steps to achieve this within the framework of Protocol No. 14. The increasing number of cases pending before the Chambers of the Court is also a matter of serious concern. The Court should be able to focus its attention on potentially well-founded new violations.
E- Judges and Jurisprudence of the court- The authority and credibility of the Court depend in large part on the quality of its judges and the judgments they deliver. The high calibre of judges elected to the Court depends on the quality of the candidates that are proposed to the Parliamentary Assembly for election. The States Parties’ role in proposing candidates of the highest possible quality is therefore of fundamental importance to the continued success of the Court, as is a high-quality Registry, with lawyers chosen for their legal capability and their knowledge of the law and practice of States Parties, which provides invaluable support to the judges of the Court.
Judgments of the Court need to be clear and consistent. This promotes legal certainty. It helps national courts apply the Convention more precisely, and helps potential applicants assess whether they have a well-founded application. Clarity and consistency are particularly important when the Court addresses issues of general principle. Consistency in the application of the Convention does not require that States Parties implement the Convention uniformly.
A stable judiciary promotes the consistency of the Court. It is therefore in principle undesirable for any judge to serve less than the full term of office provided for in the Convention.
F- Execution of judgments of the court - this looks for rapid execution of judgments. Each State Party has undertaken to abide by the final judgments of the Court in any case to which they are a party. Through its supervision, the Committee of Ministers ensures that proper effect is given to the judgments of the Court, including by the implementation of general measures to resolve wider systemic issues. The Committee of Ministers must therefore effectively and fairly consider whether the measures taken by a State Party have resolved a violation. The Committee of Ministers should be able to take effective measures in respect of a State Party that fails to comply with its obligations under Article 46 of the Convention. The Committee of Ministers should pay particular attention to violations disclosing a systemic issue at national level, and should ensure that States Parties quickly and effectively implement pilot judgments.
G- Long term future of the convention system and the court
This area is potentially very far-reaching and signals the intention that Brighton will be just a start to reforms. Phrases appear such as - "It may be necessary to evaluate the fundamental role and nature of the Court to ensure the viability of the court's key role in the system for protecting and promoting human rights in Europe." In response to more effective implementation at national level, the court should be in a position to focus its efforts on serious or widespread violations, systemic and structural problems, and important questions of interpretation and application of the convention.
The declaration mandates the Committee of Ministers to carry our a comprehensive analysis of potential options for the future role of the court, including analysis of how the convention system in essentially its current form could be preserved, and consideration of more profound changes to how applications are resolved by the Convention system with the aim of reducing the number of cases that have to be addressed by the court. The declaration requires this work to be done by the end of 2015.
H- Final provisions - The accession of the European Union to the Convention will enhance the coherent application of human rights in Europe. The Conference therefore noted progress on the preparation of the draft accession agreement and called for a swift and successful conclusion to this work.
It may be that the British government has not secured some of the more detailed proposals which were first mooted in the original draft declaration. However, the convention system has undoubtedly been given a strong steer to face a direction in which, over time, more should be done at national level to make the convention effective whilst the court becomes more focussed on serious violations etc. A lot of work remains to be done but the Brighton Declaration contains a clear timetable for that work.
Addendum 21st April: Law Society Gazette - "Brighton: we never sought seismic change, says Grieve."
Addendum 23rd April: UK Human Rights blog commentary on the declaration:
The Brighton declaration and the meddling court (Dr. Ed Bates) and "Brighton rock: Abu Qatada and the democratic deficit - the Human Rights roundup"
Addendum 30th April: Garden Court North Chambers - barrister Kate Stone's Reflections on the Brighton Declaration