Tuesday 27 February 2018

The Draft Copenhagen Declaration - Comment Series II

We continue our comment series on the draft Copenhagen Declaration with a second contribution, by dr Lize Glas of Radboud University Nijmegen, on the 'dialogue' aspects of the draft text:

The Draft Copenhagen Declaration: ‘New Ways’ to ensure a ‘Strengthened Dialogue’? 

Lize R. Glas, assistant professor of European law, Radboud University 

When making public its priorities for its chairmanship on 13 November 2017, Denmark already announced that finding ‘new ways’ to ensure a ‘strengthened dialogue’ between the states parties, domestic courts and the Court would be a ‘key objective’. As could be expected therefore, the draft Copenhagen Declaration (Declaration) dedicates a special section to dialogue, entitled ‘Interplay between national and European levels – the need for dialogue and participation’. The dialogue should be mainly about ‘the general development of case law in important areas’ (para. 33, see also paras. 32, 41). Including a message about dialogue fits into a trend: whereas the first two ministerial declarations about the Court (adopted in 2010 and 2011) did not refer to dialogue, the two most recent declarations did. The Brighton Declaration (2012) encouraged ‘open dialogues’ between, among others, the Court and states parties. Comparably, the Brussels Declaration (2015) welcomed the Court’s dialogue with the highest domestic courts. 

In this blog, I analyse the three means by which dialogue with the Court should take place, as proposed by the Declaration. After all, the Danes announced that they would find new ways for engaging in dialogue with the Court. The Declaration nevertheless also refers to already existing channels through which dialogue can take place (para. 37): the Court’s Superior Courts Network and thematic discussions in the Committee of Ministers. Additionally, the document mentions Protocol 16, which, upon its entry into force, gives the highest domestic courts the possibility to request an advisory opinion from the Court. 

Intervening as a third party

State third-party are another possibility for dialogue. This possibility has existed since 1982. The Court is asked to ‘support increased interventions by States Parties’ (para. 39). I agree that interventions are a useful – albeit not a very new – way to engage in dialogue. Interventions are useful, because, as the Court has noted, its judgments establish precedents to ‘a greater or lesser extent’. Consequently, a judgment may be relevant to states other than the respondent state. Interventions make it possible to give input into a judgment to which the states may have to abide. The intervening states can, for example, inform the Court about the consequences that a certain decision will have for them. Furthermore, interventions can help the Court to establish whether consensus exists. Interventions are also way for the states to cooperate with the Court and to thus share responsibility with it; as the Declaration notes as well, protecting the Convention rights is a shared responsibility (para. 7). Finally, the states have hardly any means to directly engage in a dialogue with the Court when they are not the respondent state and interventions offer such a unique possibility. 

The Declaration calls upon the states parties to ‘increase coordination and co-operation on third party interventions, including by communicating more systematically through the Government Agents Network on cases of potential interest’ (para. 40). I would say that actually intervening should be an equally high or even higher priority. Research that I conducted into state third-party interventions (and on which I rely throughout this section) showed that there were only 59 cases with one or more interventions by states under Article 36(2) ECHR until 15 June 2016. The UK submitted a large number of interventions (23), whereas 15 states had never intervened. Denmark had intervened only once. The number of such interventions is very low, both compared to the number of interventions of NGOs and the total number of judgments adopted. A more far-reaching measure that the states could take would be to amend Article 36(2) ECHR to delete the requirement that states must request leave to intervene. In practice, the states already have a right to intervene based on that provision, because the Court does not refuse them leave to intervene. The Convention could therefore be amended to turn the de facto right into a de jure right and, thereby, remove a procedural obstacle to intervening.  

Above all, I would like to repeat what Paul Harvey, a lawyer in the Registry of the Court, wrote on about two years ago: 

‘the most effective third party interventions are those which respect the Court’s request not to comment on the merits of a case, those which do not seek to advance their own interests and, above all, those which, in good faith, seek to provide real assistance to the Court in its adjudicative task’. 

My research found that the states do not always respect this request and often just want to advance their own interests. The states can, therefore, improve the content of their interventions. They can also improve the timing of their interventions, because they usually intervene in reaction to a Chamber judgment with which they disagree. The states could also intervene before the Court has decided a certain matter. Basically, the states should not see interventions as a means to express disagreement, but to cooperate with the Court so as to fully inform it about, for example, the functioning of their legal system and the consequences a decision may have for their legal system.

Instead of recommending the states to intervene, the Declaration calls upon the Court to ‘support increased interventions’. The Court should providing timely information on cases that could raise questions of principle (para. 39(a)) and notify the states parties when a case raises questions of general interest (para. 39(d)). I think that these two suggestions overlap and that they can be more specific. The Court could be recommended to invite states to intervene more often. Additionally, the Declaration could ask the Court to use press releases to identify cases that could result in principled judgments. These press releases should be made available on HUDOC and not just to the states parties. The Declaration also suggests that the Court makes the questions to the parties available to the states at an early stage (par 39(b)), but this happens already: on 15 February, the cases communicated on 26 January could be found on HUDOC. Lastly, the Declaration calls upon the Court to ensure that the questions to the parties are formulated in a manner that sets out the issues of the case in a clear and focussed way (para. 39(c)). This is indeed important, because the decision to intervene is often based on the statement of facts and questions to the parties (not just the questions). I am not sure how useful this recommendation is however. The recommendation implies that these statements are unclear and unfocussed currently and I doubt if that is true. Two other possible recommendation to the Court, which are not included in the Declaration, is that it could ask questions to the intervening states more often and refer to the interventions in is judgments more often. In this way, an actual dialogue can be seen to take place. 

Expressing support for referral to the Grand Chamber  

A proposal that is new to my knowledge, is that the Court adapts it procedures so that other states parties can indicate their support for the referral of a Chamber case to the Grand Chamber. The Declaration also proposes that the panel takes such support into account when determining whether the conditions of Article 43(2) ECHR have been met (para. 38). More input from more interlocutors can indeed strengthen dialogue. As discussed already, some judgments, especially Grand Chamber judgments, may be of relevance to states other than the respondent state. It, therefore, makes sense to give them a voice, also about whether a case should be referred. Furthermore, one reason to refer is that a case has a ‘high profile’, for example because it concerns matters at the heart of a sensitive European debate. Input from the states can confirm whether a case has such a profile or not. 

The current proposal is, in my opinion, unnecessarily limited for two reasons. First, the states can only indicate their support for referral. To make this mechanism more balanced and less a means to just criticise the Chamber, I would propose that it should also be possible to explain why a judgment should not be referred. Second, the proposal only refers to the states parties, whereas the Declaration emphasises that the dialogue should also include civil society (para. 38). I would therefore propose that ‘any person concerned who is not the applicant’ (cf. Article 36(2)) should be able to voice his opinion. This amendment would also suit the logic of the Convention system better, because civil society can also intervene before the Court. 

I would like to add some practical considerations. First of all, the number of judgments that the Grand Chamber can issue is limited. Therefore, the impact of the proposal will be limited too. To illustrate, only six percent of the cases for which referral was requested, was referred to the Grand Chamber in 2017. It is also important to realise that it will remain unknown whether the Court took an opinion into account, because the panel does not reason its decisions and has continued to refuse to give reasons, even though the Brussels Declaration invited it to do so. Just giving input, without knowing its influence, hardly strengthens dialogue. The motivation for not reasoning the panel decisions – the Court’s workload, brings me to the next point: the Court may also refuse the implement the current proposal because it will increase its workload. Finally, once Protocol 15 has entered into force, the referral procedure may become less relevant altogether. Protocol 15 will remove the possibility for the parties to object to the relinquishment of jurisdiction by a Chamber to the Grand Chamber (Article 3). Therefore, probably more cases will be relinquished and less referred (Footnote 1).  These practical considerations necessitate reconsidering the proposal: is it really worth it, considering that the Court’s workload (and that of the Agents) will increase? 

Discussing and adopting texts on general developments in the Court’s case law

The most spectacular proposal for a new way to engage in dialogue is, without question, that the Declaration encourages the states parties ‘to discuss the general development of areas of the Court’s case law of particular interest to them and, if appropriate, adopt texts expressing their general views’. The discussions ‘should respect the independence of the Court’. The dialogic element of these discussions and texts is, according to the Declaration, that they ‘may be useful for the Court as means of better understanding the views and positions of States Parties’ (para. 41). The Danes want to implement this idea soon, since they add that they will organise ‘series of informal meetings of States Parties before the end of 2019, where relevant developments in the jurisprudence of the Court can be discussed’ (para. 42). 

When reading that the Declaration underlines the need for dialogue at ‘political levels’ (para. 36), I already wondered how such a dialogue should take place. The proposal that I just described is the answer to my question. I do not think that this proposal should be included in the final Declaration. The Court is a judicial, not a political, institution. It is, therefore, not appropriate to try to influence the Court by, what will be, political statements. The proposal is also ill-advised, because the Court cannot react to the statements, it cannot engage in dialogue about them. Moreover, it should be recalled that Article 19 ECHR establishes the Court to ensure the observance of the engagements undertaken by the states parties, including their engagement to secure the Convention rights by virtue of Article 1 ECHR. Additionally, Article 32 ECHR stipulates that the Court’s jurisdiction extends to ‘all matters concerning the interpretation and application of the Convention’. Since the Court has jurisdiction to interpret and the apply the Convention in last instance (Article 35(1) ECHR), it would go against the spirit of the Convention to give the states parties a comparable task that would be, moreover, broader than that of the Court, as the Court does not deal with general developments in its case law in the abstract. In short, if the states really want to help the Court better understand their views and positions, they should make the most of their pleadings and start to intervene. 

Footnote 1: Lize R. Glas, The Theory, Potential and Practice of Procedural Dialogue in the European Convention on Human Rights System (Intersentia 2016), 344.

This blog comment was posted earlier on the Strasbourg Observers blog.