Monday 21 December 2009

More on Interlaken

The upcoming conference in Interlaken next year on the reform of the supervision of the ECHR is already yielding a range of preparatory documents. The Commissioner for Human Rights of the Council of Europe has published a memorandum in which he gives his views. He points amongst others to the need to strengthen national supervision of human rights and specifically national monitoring by e.g. national human rights institutions. Not surprisingly the Commissioner also calls for more staff for his own office in order to make his own contribution to the ECHR supervisory system. In the past few years, the budget of the Council of Europe's institutions (apart from the Court) has indeed stagnated. Now that both attention and emphasis are being put more heavily on implementation of the Court's judgments, the enabling environment - as I would call it - of the Convention indeed needs reinforcement.

The Steering Committee for Human Rights (CDDH) in which all state parties are represented has now also made public its 'Opinion on the issues to be covered at the high-level Conference on the future of the European Court of Human Rights'. This document is probably the best indication of the issues to be addressed at Interlaken and also gives an insight in current thinking on the part of the states involved. It will, by the way, be the only intergovernmental contribution, to this conference, it is expected. Just to highlight a few points: the states seem to remain committed to the individual right of application. But further on in the document, an important proviso is added:

In the longer term, there lies the possibility that the Court might one day develop to have some degree of power to choose from amongst the applications it receives those that would receive judicial determination. The time is not yet ripe, however, to make specific proposals to this end.
It is also suggested that a system of fees might be introduced to reduce the number of clearly inadmissible applications. In this same context, the document mentions several options to make the filtering of applications more effective, such as:

(i) a new, separate body of judges within the Court, responsible for filtering;
(ii) additional judges appointed to the existing bench;
(iii) the discharge of certain judicial powers by members of the Registry;
(iv) at least in the short-term, until other solutions can be implemented, a rotating pool of judges taken from the existing bench.
The CDDH also calls upon the Court itself to be clear and coherent and "to take full accoonut of its subsidiary role" - is that a plea to revive a strong margin of appreciation application and in general to leave more to the state parties? One might question whether this way of handing responsibility back to national authorities will automatically strengthen human rights protection. In that sense, supervising human rights is not the same as raising children by giving them increased responsibilities. Caution is called for here.

The Secretary General of the Council of Europe, Thorbjørn Jagland, has also drafted his contribution (dated 18 December) to Interlaken, which will soon be online on the Council of Europe's website.

Finally, on the NGO front, action is also being undertaken to make sure that the reforms will truly happen and more specifically will really strengthen the system of supervision. As I reported last week, there is a joint NGO statement. The drafting NGOs of this document are now calling for other NGOs, in as many ECHR state parties as possible, to endorse this document to make civil society's voice resound in the hills around Interlaken. NGOs who want to endorse the document or who have further questions about it, can contact the main drafters at Europeigoteam at .