Wednesday 28 February 2018

The Draft Copenhagen Declaration - Comment Series III

The third episode in our series on the draft Copenhagen Declaration focuses on process-based review and was written by my Utrecht colleague and SIM fellow Leonie Huijbers:

The Draft Copenhagen Declaration – Process-based review and subsidiarity

Leonie Huijbers, PhD Candidate, Utrecht University

With the publication of the list of priorities for the Danish Chairmanship in November 2017, it became publicly clear that the Danes would push for yet another debate on the future of the Convention system. According to the Danish Chairmanship, such a debate is needed because ‘support’ for the Convention system is diminishing and the authority of the Court is (actively) questioned by European citizens and national policy-makers. Ironically, the Danes themselves were faced with a lack of support for their plans to engage in another round of reform deliberations. The Council of Europe bodies appear to be a little tired of all the reforms and have questioned the usefulness of new reforms. Indeed a 2015 CDDH-report states that the challenges faced by the Convention system requires ‘allocating additional resources and more efficient working methods rather than introducing a major reform’ (p. 10). Nevertheless, to garner, as well as test, support for their ideas, the Danes organised a High-Level Expert Conference in Kokkedal, Denmark in November 2017 before reaching the current draft Copenhagen Declaration. Various actors were invited to participate in the Conference, not only politicians and statesmen, but also judges of the ECtHR and domestic courts, as well as academics and representatives of NGOs. 

One topic in the draft Declaration suggests that perhaps the participation of particular participants in the Kokkedal Conference has had a strong influence on the draft’s authors. This topic concerns the references to the principle of subsidiarity and the Court’s process-based review in the draft under the heading ‘European supervision – the subsidiarity role of the Court’ (paras. 22-30). The terminology used therein is reminiscent of the ideas expressed by Robert Spano, the ECtHR judge for Iceland, who also spoke at the Kokkedal Conference. Spano’s speech was entitled ‘The Future of the European Court of Human Rights – Subsidiarity, Process-Based Review and the Rule of Law’ (further elaborated in a forthcoming article in the Human Rights Law Review). In addition, the draft Declaration mentions that ‘the Court has engaged in more robustly applying the principle of subsidiarity and the margin of appreciation’, which reminds of the notion of ‘robust subsidiarity’ in an article by Spano published in 2014. Perhaps even more interesting is the question whether the proposals in the draft concerning the principle of subsidiarity and process-based review would indeed aid the Court in its work, or whether they mainly aim to limit the Court’s competences.

Political and Judicial Support for Process-based Review

Firstly, what is exactly meant by process-based review or procedural review? These notions refer to the focus of the Court on the decision-making processes of national legislative, executive and judicial authorities for determining whether a substantive right has been violated. It is generally considered that the Court is increasingly applying this approach, not only in cases concerning Articles 8 and 10 ECHR (see the Court’s background paper of 2015), but also in relation to, for example, Article 11 ECHR (for example, Öğrü and Others v. Turkey) and Article 3 Protocol 1 ECHR (see for example, Hirst v. UK (No. 2)). This procedural approach features, most prominently in paragraph 24 of the draft Declaration, which states:
‘where domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and the Court’s case law, and adequately balanced the interests at stake, it is not for the Court to substitute their assessment with its own, unless it has identified strong reasons for doing so’ (para. 24). 
The draft Declaration clearly supports such a procedural approach. The Court and the politicians therefore seem to be in tune with one another. Also within the Court, there appears to be a relatively widespread support for this approach. Even though not all judges are openly advocating this approach, as Judge Spano has done, it is clear that the approach has been applied in various judgments of the Grand Chamber. The formulation mentioned above also has been reiterated in quite a large number of Chamber judgments (already 67 judgments and decisions appear if one searches for (“substitute” NEAR “strong reasons”) in HUDOC). 

The quotation made in the draft Declaration refers to the famous Von Hannover v. Germany (No. 2) judgment, in which the Grand Chamber of the Court confirmed the approaches taken in MGN Limited v. the UK (paras. 150 and 155) and Palomo Sánchez and Others v. Spain (para. 57). In Von Hannover the Court, however, phrased its approach a bit more delicately than the draft Declaration does: 
‘Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts.’ 
This blog argues that these differences in wording are rather significant and may even be crucial for the further development of the Court’s process-based approach. 

Misinterpretations of the Court’s process-based approach

Firstly, concerning the obligation for national authorities to carry out a balancing exercise in light of the Convention and the Court’s case law, the draft Declaration lowers the threshold. Whilst the Court emphasised the need for domestic courts to conform with the Convention standards, according to the draft Declaration it is sufficient if they apply human rights standards, whether national or international, and do so in a way that is consistent with the Convention standards. The draft Declaration therefore replaces the Court’s requirement of compliance and conformity with one of application and consistency. In combination with paragraph 14 of the Declaration, which mentions that human rights are ‘being protected predominantly at national level by State authorities in accordance with their constitutional tradition and in light of national circumstances’, this may easily reduce the level of protection of fundamental rights the Court would need to provide.  

Secondly, the draft Declaration appears to connect the Court’s procedural approach in a one-sided manner to the principle of subsidiarity and the margin of appreciation. Where the Court in the Von Hannover judgment held that it requires strong reasons to substitute its view for that of the domestic courts, the draft Declaration phrases this in a more negative manner. It states that ‘it is not for the Court to substitute [domestic courts’] assessment with its own, unless it has identified strong reasons for doing so’ (para. 24). The draft also mentions that ‘[i]f a genuine balancing of interests has taken place at the national level, it is not the Court’s task to conduct the proportionality assessment afresh’ (para. 24), and that the Court ‘should not take on the role of States Parties’ (para. 22). The draft Declaration therefore suggests that the Court’s task is not to look into the substantive proportionality of a measure or into the facts of a case (see also para. 25), when such an assessment has already been carried out by domestic courts. Only in very exceptional circumstance this would be different, i.e., in case the Court has been able to explicitly identify strong reasons that allow it to substitute the domestic courts’ view for its own. 

This concerns a misapprehension of how the Court’s procedural turn should be related to its subsidiary role. Although process-based review relates to the principle of subsidiarity, a more ‘robust’ application (para. 27) of that principle and the margin of appreciation neither means that the Court’s review is limited to a procedural assessment per se, nor that the Court can only step in when national authorities have flagrantly misapplied the Convention. Such a scenario would leave the Court’s review without any ‘bite’, as it would lower the protection provided by the Convention, and it would facilitate procedural ‘window-dressing’ by national authorities. In its case law, the Court has instead connected process-based review with the principle of subsidiarity in a way that allows for it to supervise the implementation of the Convention at the national level (in conformity with Articles 1 and 19 ECHR). It has done so by accepting process-based considerations as relevant factors for determining the scope of the margin of appreciation (see for a recent example Ndidi v. UK, para. 76). It should be stressed here that this is only one of the relevant factors, as also indicated in the Court’s opinion on the draft Declaration, and that it is for the Court to determine the margin afforded on the basis of several factors. 

Where the Court’s process-based review is linked with the margin of appreciation, it in fact works in two directions. The Court might grant a wide margin of appreciation to national authorities when they have carefully and adequately carried out a balancing exercise in accordance with the Convention and the Court’s case law – so if they have truly ‘brought human rights home’. If the national authorities have failed to carry out their task, however, the Court is likely to narrow the national authorities’ margin of appreciation. It will then strictly scrutinise the outcome of a decision, or even find a (procedural) violation of the right. In other words, process-based review does not mean less European supervision, it means sharing responsibilities through building trust between the Court and national authorities. 

A final concern worth mentioning relates to the way in which the draft Declaration portrays the Court’s approach concerning the national legislative and executive authorities. On the one hand, in relation to the Court’s process-based review, the draft focuses solely on the Court’s approach regarding national judicial decision-making authorities. However, in Animal Defenders International v. UK the Court clarified that its focus on national decision-making processes relates also to ‘the quality of the parliamentary … review’. Procedural review is thus also relevant in relation to parliamentary debates and evidence-based decision-making (see also, for example, Hatton and Others v. UK, Grand Chamber). On the other hand, insofar as the draft Declaration also refers to the responsibility of national legislative and administrative authorities, it does so only in a supervision reducing manner. Whilst the draft encourages national authorities to check ‘in a systematic manner and at an early stage of the process’ the compatibility of legislation and policies with the Convention (para. 20(b)), in light of the margin of appreciation it mentions that ‘States Parties enjoy a margin of appreciation in how they apply and implement the Convention’ and that ‘in matters of general policy … the role of the domestic policy-maker should be given special weight’ by the Court (para. 23). This seems to indicate that only positive inferences can be drawn by the Court on the basis of the national decision-making process. The Court’s approach, by contrast, aims to ensure that legislative and administrative authorities make rational choices respecting fundamental rights. If they cannot demonstrate reasonable decision-making, then closer scrutiny by the Court is warranted. The Court’s rationale thus appears to be that protection of fundamental rights is assured best at the national level if all national authorities take fundamental rights into account in their decision-making processes. After all, prevention is better than cure, even if the cure is given by domestic courts. 

Suggestions for the Copenhagen Declaration

To conclude, one could wonder whether the use of process-based review actually ought to be part of a political Declaration. As indicated in the Joint NGO response to the draft, ‘it is not for a political Declaration to seek to determine what and how judicial tools of interpretation, such as the margin of appreciation, apply’, since such is ‘the sole task of the Court’ (p. 6). Surely, caution is warranted, especially since the way in which the draft Declaration describes the Court’s process-based approach and its relationship with subsidiarity, does not relate to an enhanced effectivity of the Convention, but seems to limit the Court’s substantive supervision of the Convention. Robust subsidiarity therefore appears to be a tool of the Danes to weaken the Convention system, instead of sharing responsibility in a ‘better’ way. If process-based review and the principle of subsidiarity are to be included in the Copenhagen Declaration, it is paramount that the Contracting Parties find more appropriate wording to guarantee the effectiveness of the Convention as well as secure the independence of the Court, and ensure the potential of the Court’s process-based approach.

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