Friday 20 November 2009

Saving the Court and Strengthening Human Rights - NGO Input for the Interlaken Process

Last week I attended a roundtable in London on the future of the European Court of Human Rights. It was jointly organised by a group of the main London-based human rights NGOs: Amnesty International, Human Rights Watch, the AIRE Centre, Interights, International Commission of Jurists, Justice, Liberty and EHRAC. In lively plenary discussions and in smaller groups the participants formulated possible ideas to strengthen the protection of human rights in Europe through the Court's Interlaken reform process. It was a generally shared feeling this protection should be the underlying core consideration in reforming the Court rather than only increasing the Court's efficiency. These are some of the central outcomes (in my own humble summary):

A Stronger Court
One main concern was the strengthening of the Court's independence and its ability to deal in a more flexible way with the challenges of the present and the future. This increased independence could come about by giving the Court a budget detached from the one of the Council of Europe (at present every increase in the Court's budget goes at the detriment of other very essential human rights tasks of the Council of Europe) and by a more transparent selection of the candidates for appointment as judges on the national level. There are currently huge differences between states in this respect. As to flexibility, a statute (easier to change than the Convention itself, but with more status than the Court's own rules of procedure) was seen as a good prospect as long as it would not be used to weaken the acquis of the current Court, such as the binding nature of interim measures. Reforms should not be used as a pretext to turn back the tide. In any event, the Court should not again become a hostage of protracted ratification processes of reform protocols to the Convention (as happened with Protocol 14).

A Better Enabling Environment
Secondly, it was considered important to significantly strengthen the enabling environment of the Court's work. This relates specifically to the implementation of the Court's judgments. The Committee of Ministers, which formally supervises such implementation, currently has a very dedicated but also very small staff of a few dozen people who have to deal with the supervision. The backlog of cases so known to Court watchers is now also a problem in the implementation phase. Increased NGO input during this phase would be helpful to get information on implementation in national cases to the Committee. Other main actors who could solidify this enabling environment are national human rights institutions and NGOs which could focus on monitoring state compliance with ECHR judgments - especially in cases of large-scale or systemic problems - and the Council of Europe's Commissioner for Human Rights who could pay structural and specific attention to the implementation of the Court's judgments in his discussions and reports concerning specific countries. To do this effectively, it is essential that the Court is as clear as possible in its judgments on what the Convention requires from states, as it increasingly does through pilot judgments. Put succinctly, the network aorund the Corut should be strengthened.

More ECHR Expertise at the National Level

I might add that at the other end of the horizon, where cases come to the Court, it is essential to increase expertise on how the Convention system works both among the general public but specifically among practising lawyers. ECHR as a standard part of legal education would be helpful, but also practical dissemination of information on admissiblity criteria and other matters within the state parties themselves. In that respect, an interesting pilot project (not to be confused with pilot judgments) is being undertaken in Poland - the Warsaw Pilot Project - where a lawyer has been appointed within the Council of Europe's Information Office to inform potential applicants about admissibility criteria and more generally about the ECHR. Such undertakings, either performed by a specially appointed lawyer or by national human rights institutions, might help to avoid part of the deluge of cases streaming to Strasbourg.

A short note on follow-up: the Swiss government, host of the Interlaken conference, will organise a consultation with NGOs in Strasbourg on 4 December. For those NGOs who want to get engaged on the national level to lobby their own governments, you can contact Jill Heine of Amnesty International for more information (jheine at The Norwegian government (on 7 December) as well as the Parliamentary Assembly will both also organise conferences in the run-up to Interlaken.

Let us hope for a strong outcome of the Interlaken process, for the benefit over the over 800 million Europeans whom the Convention should effectively protect!