Tuesday, 20 July 2021

Summer Break ECHR Blog

Dear readers,  this blog is taking a Summer break after another intense blogging season on the ECHR and its Court. We wish all of you a good Summer or Winter, depending on the hemisphere,

Antoine Buyse & Kushtrim Istrefi

Thursday, 15 July 2021

New Book: Rights of Families of Disappeared Persons

Gra
żyna Baranowska (Poznan Human Rights Centre) has published a book titled Rights of Families of Disappeared Persons (Intersentia). 
 
Here is the abstract of the book:
 
"This book examines how international judicial and non-judicial bodies in Europe address the needs of the families of forcibly disappeared persons. The needs in question are returning the remains of disappeared persons; the right to truth; the acceptance of responsibility by states; and the right to compensation. These have been identified as the four most commonly shared basic and fundamental needs of families in which an adult was disappeared many years previously and is now assumed to be dead, which is representative of the situation of the vast majority of families of disappeared persons in Europe.

The analysis covers the judgments and decisions of the European Court of Human Rights, the UN Human Rights Committee, the International Criminal Tribunal for the former Yugoslavia, the Human Rights Chamber for Bosnia and Herzegovina, the Human Rights Advisory Panel in Kosovo, as well as the activities of the Committee on Missing Persons in Cyprus, the Special Process on Missing Persons in the Territory of former Yugoslavia, the UN Committee on Enforced Disappearances and the International Commission on Missing Persons. In so doing, the book demonstrates whether, how, and based on what principles these four needs of the families of disappeared persons can constitute a claim based on international human rights law."

Tuesday, 13 July 2021

Country Factsheets on the Execution of Judgments of the European Court of Human Rights

Recently, the Committee of Ministers' Department for the Execution of Judgments of the European Court of Human Rights
launched a dedicated webpage which gives a country-by-country overview by way of factsheets on each state party to the ECHR. Each factsheet gives an overview of key issues flowing from the judgments of the Court which are currently pending before the Committee of Ministers. The factsheets link on to more detailed information on specific cases. The sheets also include thematic information, e.g. on new domestic laws and policies or other reforms made by states following ECtHR judgments, listing main achievements under closed cases as well as main cases under supervision. They show statistics on the number of 'leading' and 'repetitive cases' per state. 

As the Council of Europe specifies, 'the creation of this new webpage aims to further enhance the transparency of the ECHR judgments’ execution process and to make easier the access to relevant information by all interested parties.' Indeed a very useful resource in the growing amount of information on the stage after the Court issued its judgment in a case.

Tuesday, 6 July 2021

Aliens before the European Court of Human Rights

David Moya and Georgios Milios have edited a volume titled Aliens before the European Court of Human Rights: Ensuring Minimum Standards of Human Rights Protection (Brill). The book is geared towards a
ll those interested in migration and asylum law and the case-law of the ECHR.
 
Here is a short abstract of the book:
 
'This volume conducts an in-depth analysis of the ECtHR’s case law in the area of migration and asylum, exploring the role of the Court in this area of law. Each chapter deals with the case law on one specific ECHR article that is relevant for migrants, asylum seekers and refugees. In addition, the volume is enriched by two additional studies which deal with issues that are treated in a transversal manner, namely vulnerability and the margin of appreciation. The volume systematises the case law on aliens’ rights under the ECHR, offering readers the chance to familiarise themselves with or gain deeper insight into the main principles the Strasbourg court applies in its case law regarding aliens.'

Friday, 2 July 2021

Summer School: ECHR in Times of Crises

From 5 to 10 September 2021, TU Dresden and Leipzig University
are organising a summer school 'Human Rights in Theory and Practice: The European Convention on Human Rights in Times of Crises'. The summer school will take place both online and in person (in Dresden)
.  
 
Themes such as emergency situations, populism, migration, and the role of economic, social and cultural rights in the context of crisis will be explored from an interdisciplinary perspective.
 
Speakers of the summer school include the Strasbourg Court Judge Anja Seibert-Fohr and 17 other established scholars and practitioners working on the Convention system.
 
The Summer School is designed for advanced students of law, political science, international relations and similar fields. Prior knowledge about the European Human Rights System may be beneficial but is not required. The language of the Summer School will be English.
 
The programme is available here and the registration link is here. For more information you can visit the website of the summer school.

Monday, 28 June 2021

New ECHR Readings

Please find below a new batch of articles and other publications related to the ECHR and the Court:

* Medes Malaihollo, ‘Due Diligence in International Environmental Law and International Human Rights Law: A Comparative Legal Study of the Nationally Determined Contributions under the Paris Agreement and Positive Obligations under the European Convention on Human Rights’, Netherlands International Law Review 2021, vol. 68, no. 1, p. 121–155: 
 
'Due diligence is a frequently employed notion in international law, yet much is still to be explored about this concept. This article aims to contribute to an understanding of due diligence obligations in international law, which is useful as it can form the basis for a further clarification of corresponding legal rights of subjects of international law. With this purpose in mind, this article initiates the construction of a working model of due diligence in international law by exploring this notion from two perspectives: an accountability perspective and a regulatory perspective. Subsequently, this article will use this model to compare the operation of due diligence obligations in two branches of international law: international environmental law and international human rights law. In doing so, it will become clear that due diligence contains two core elements: ‘reasonableness’ and ‘good faith’. Moreover, it will become apparent that the operation of due diligence obligations in these two branches has implications for systemic issues in international law. Further research on the operation of due diligence obligations in other branches of international law is therefore recommended.' 

* Veronika Fikfak, ‘Friendly Settlement Before the European Court of Human Rights’, iCourts Working Paper Series, No. 247 (forthcoming in International Journal of Constitutional Law 2022):

'Even though they represent almost 50% of all reported cases before the European Court of Human Rights, settlements of human rights violations escape scholars’ attention. Whilst victims are increasingly expected to resolve their disputes amicably, it is unclear whether applicants will be better off accepting settlement offers rather than proceeding to litigation. The paper charts the practice of friendly settlements before the Court from 1980s to today, mapping a shift in approach from seeking bilateral solutions to the proactive role of the Registry as mediator encouraging states and applicants to settle their cases to relieve the Court of the heavy workload. The study of 10,500 cases reveals how strategies adopted by the Registry – from procedural changes to how and when consent is given to settlement, to the framing of settlement offers and a close relationship with representatives of the respondent state – have favoured the most frequent violators of the Convention and sidelined the interests of the applicant. The analysis uncovers that the imbalance between parties and lack of enforcement are very much present in the ECtHR settlement system and that the active role of the Registry has reinforced, rather than redressed these concerns. The findings expose the dangers of pursuing en masse settlement in the human rights context and raise concerns about achieving long-term justice for victims of human rights violations through other means than adjudication.'

* Daniel Peat, ‘The Tyranny of Choice and the Interpretation of Standards: Why the European Court of Human Rights Uses Consensus’, 53 N.Y.U. J. Int’l L. & Pol. 381 (2021):

'Recent studies in social psychology have consistently shown that individuals are inherently averse to choice overload. Faced with complex choice sets, people are unhappier with the choices they make, more likely to regret their decision, and more prone to reverse their initial choice. This article tests the hypothesis that individuals’ innate aversion to choice overload might explain how courts and tribunals interpret standards such as fairness, necessity, and proportionality. Drawing on the findings of an empirical study of 461 judgments of the Grand Chamber of the European Court of Human Rights, the article suggests that the Court’s consensus doctrine must be understood partially as a reaction to the tyranny of choice.'

* Roberta Medda-Windischer, ‘Religious and Linguistic Minorities and the European Court of Human Rights: Between Restrictive Measures and Concerted Solutions’, Europa Ethnica 2021, Vol. 78, no. 1, pp. 36-47.

* Chris Wiersma, ‘The ‘Disobedience’ of Journalists at Public Assemblies: An Analytical Critique of the ECtHR's Case Law from a Media Freedom Perspective’, Nordic Journal of Human Rights, 2020, Vol. 38, no. 4, pp. 261-278.

Thursday, 24 June 2021

New Factsheet on Conditions of Detention under the ECHR

The Council of Europe
Department for the Execution of Judgments of the European Court of Human Rights has issued a new thematic factsheet on the execution of the Court judgments concerning conditions of detention and prohibition of torture.
 
Here is a brief summary of the report:

"Article 3 of the European Convention on Human Rights enjoins States to ensure that detainees be held in conditions which are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, detainees’ health and well-being are adequately secured. Also, according to the basic principlesof the European Prison Rules, persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding in custody. Moreover, prison conditions that infringe prisoners’ human rights are not justifiedby lack of resources, while all detention should be managed so as to facilitate the reintegration into free society of persons deprived of their liberty.1The present factsheet sets out examples of measures adopted and reported by States in the context of the execution of the European Court’s judgments with a view to preventing and eradicating torture and other forms of ill-treatment of detainees in accordance with Article 3 of the European Convention. It focuses on the following issues: material conditions of detention; detainees’ physical and mental healthcare, psycho-social support and preparation for social reintegration; detention on remand and in police detention facilities; protection and prevention of detainees’ ill-treatment by prison staff and inmates; national inspection, monitoring and complaint systems effective remedies." 
 
The Department for the Execution of ECHR Judgments has previously issued other important thematic and country factsheets, which can be accessed here.

Wednesday, 23 June 2021

Davor Derenčinović Elected New Judge in Respect of Croatia

On 22 June, the Parliamentary Assembly of the Council of Europe elected Davor Derenčinović as judge to the European Court of Human Rights in respect of Croatia. His term of of office of nine years will commence on 2 January 2022.

Derenčinović is a full professor of criminal law at the University of Zagreb and since 2010 served as ad-hoc judge of the European Court of Human Rights in respect of Croatia. He also holds the position of the president of the Croatian Academy of Legal Sciences. In the past he served as a member of different committees in Croatian Parliament and Government. His and the CV of the two other Croatian candidates for the position of ECHR judge can be accessed here.

Monday, 21 June 2021

Webinar on Evidence and Proof in ECtHR Proceedings

On 5 July, The DISSECT research project led by Marie-Bénédicte Dembour (Ghent University) is organising a webinar on 'Evidence and Proof in Proceedings Before the European Court of Human Rights.' The DISSECT project, more widely, looks at e
vidence in international human rights adjudication. Places are limited to facilitate in-depth debate  so please apply if you would like to attend. This is the information provided by the organisers:

'Evidentiary issues are crucial but often neglected in scholarly discussions of international human rights adjudication. DISSECT is organising a one-day webinar exploring how these issues play out in case law of the European Court of Human Rights. This will take place on Monday 5 July 2021, from 9:30 to 16:45 CET.
 
Featuring a number of academic experts and benefiting from input by the former Deputy-Registrar of the Court, Mr Michael O’Boyle, the aim is to allow and develop in-depth discussions. In order to facilitate this, we ask that participants commit to the whole day, rather than attend one or two sessions. For the same reason, the number of participants will be capped at 25.
 
If you are interested, please send an email to research.hrc@ugent.be with a short motivation why you would like attend the seminar. We will confirm your participation by 28 June 2021. Speakers’ presentations will be recorded and subsequently posted on the DISSECT’s website.'



Friday, 18 June 2021

Blog Symposium on Protocol 15 ECHR - A Protocol for the Ostriches? Civil Society Perspectives

Başak Çalı, Hertie School

Protocol 15 to the European Convention on Human Rights, a culmination of the UK Government’s contribution to the process of reform of the European Court of Human Rights during its Chairmanship of the Committee of Ministers of the Council of Europe in the first half of 2012, will finally came into force in August this year. The official purposes of the 2012 Brighton Declaration were to strengthen the implementation of the Convention at the national level, to strengthen the principle of subsidiarity in the ECHR system, and to help the Court to focus its resources on the most important cases. 

 

As is well-known, the Protocol 15 package includes the following amendments to the Convention: 

 

(1) it adds a reference to the principle of subsidiarity and the doctrine of the margin

of appreciation to the Preamble to the Convention;

(2) it changes the rules on the age of judges of the Court, to ensure that all judges are

able to serve the full nine-year term;

(3) it removes the right of parties to a case before the Court to veto the

relinquishment of jurisdiction in a case before a Chamber in favour of the Grand

Chamber;

(4) it reduces the time limit for applications to the Court from six months to four months; and

(5) it deletes the wording ‘provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal’ from 35 (3) b of the Convention. 

 

In this blog post, my aim is to offer reflections on the first, fourth and fifth of these amendments introduced by Protocol 15 from the perspective of human rights organisations working to protect human rights in the Council of Europe. As such, I will focus on the addition of an express reference to the principle of “subsidiarity” and the doctrine of “the margin of appreciation” in the Preamble of the Convention, reduction of the time limit from six months to four months in bringing complaints before the ECtHR, and the amendments to Article 35 (3)b of the Convention. 

 

A notable aspect of the Brighton Conference that brought about Protocol 15 in 2012 was the lack of civil society participation in the discussions concerning these amendments.  Only a handful of NGOs were invited to the conference and civil society presence from countries with the highest number of pending applications before the Court was missing. Ironically, however, human rights work by civil society organisations across Europe is more likely to be impacted by these amendments than that of all the other actors of the Convention system, namely, the states parties and the Court. Specifically, Protocol 15 now requires human rights civil society to be ever more vigilant, through documentation, monitoring and advocacy, to ensure that these amendments are not interpreted (or mis-interpreted) by national authorities and the ECtHR in ways that lead to under-protection of Convention rights as an effective living instrument. 

 

Coming into force of the emphasis on subsidiarity in the Preamble: Increased risks to under-protection?

 

Looking from 2021, subsidiarity and the margin of appreciation appear to be well established and frequently invoked principles of interpretation in the case-law of the Court.  The current President of the Court is well known for having coined that the ECtHR has entered the ‘age of subsidiarity’ back in 2014. Starting in 2012, the Court’s case law has indeed placed a newly found doctrinal emphasis on the primary responsibility of the member states of the Council of Europe to secure the rights and freedoms set out in the Convention. It has done so by paying systematic attention on whether national authorities show good faith engagement with the Convention’s principles. Where it has found such engagement, the Court has become more reluctant to carry out substantive reviews of outcomes reached by domestic courts in individual cases. Studies, in particular, show that more and more cases brought or supported by NGOs working for example on immigration detention, push backs at land borders,  or full-face veil bans end up receiving lite-human rights review by the Court. 

 

In this respect, it may be held that the coming into force of Protocol 15 does not signal new, but rather ongoing challenges for human rights civil society in Europe working to advance the rights of the marginalised groups. The coming into force of Protocol 15 is a mere formalisation of what has de facto been underway in the Court’s case law over the last decade. 

 

One new question in this context is whether the coming into force of the amendments to the Preamble will lead to even more increase in the overly broad use or even misuse of subsidiarity and the margin of appreciation at the expense of effective protection of the rights in the Convention by the Court or by national authorities. Overbroad use is not only a matter of concern for civil society organisations that seek to protect the rights of marginalised groups, but also those that seek to expand the scope of the rights protected by the Convention, (as recently manifested in civil society efforts that demand the Court to address the climate crisis in the context of the Convention). 

 

In addition, there is further evidence that some national authorities are not employing subsidiarity to deepen and widen their engagement with the spirit of the Convention, but instead to shield national sovereignty, at the expense of the very spirit of the Convention. This misuse of subsidiarity not only undermines effective access to the Convention before domestic courts, but also the implementation of interim measures or judgments of the ECtHR. Consequently, the coming into force of Protocol 15 may also undercut civil society efforts to ensure the implementation of human rights at the national level, where subsidiarity is used as a sword against rights of migrants, women, LGBTI communities, minorities, journalists or political opposition.

 

The reduction of the time limit from six months to four months 

 

The most significant concern with the time-limit amendment from the perspective of civil society is the consequences this will have on the practical and effective access to the ECtHR. Human rights NGOs criticised the lack of adequate reflection on its potential impact on effective access to the ECtHR already in 2012. In particular, civil society pointed to the negative effects that the shorter time limit is likely to have. It may undermine access to the Court in a wide variety of situations. These include situations where there is a prolonged delay in notifying applicants of final domestic decisions; when applicants live in geographically remote locations, are in detention or other forms of confinement, or lack access to modern communications technology such as the internet; when cases are complex and require lengthy preparations; when individuals lack access to support from NGOs or qualified lawyers and when lawyers are not adequately experienced in bringing applications to the Court. It is notable from these discussions that the reduction of the time limit is likely to affect individuals with significant vulnerabilities and with the least access to resources or legal advice. 

 

Despite these risks, the Committee of Ministers, in particular, has not done a base line study as to how the reduction of the time limit would hamper access to the ECtHR, for which groups and in which kinds of ways. This amendment will come into force six months following the entry into force of the Protocol. the Committee of Ministers’ Explanatory Reportstates that this is to ‘to allow potential applicants to become fully aware of the new deadline.’As discussed above, however, being aware of the new deadline may not in and of itself compensate barriers to meet the shortened time period.  

 

Given the wide-ranging risks to access, it is now imperative for civil society to monitor and document if and when the new time limit hampers access to Court. There are, however, challenges as to how the civil society communicates these formally with the Court, in particular, given that  the civil society’s ability to communicate with the Court by way of third-party interventions starts only after a case is communicated by a chamber. A rigid use of the new time limit by single judge decisions, in particular, may risk cases to be declared inadmissible prior to their communication to the state party. This amendment, therefore, places an additional onus on civil society to monitor and document the risks posed by this amendment to effective access to the Convention system in practice and to find alternative channels to communicate with the Court and other organs of the Council of Europe on these risks. 

 

Deletion of ‘provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal’ from Article 35(3)b ECHR

 

According to the Committee of Ministers’ Explanatory Report, this amendment is intended to give greater effect to the principle that the Court should not be concerned with ‘trivial matters’. This is a concerning development as the notion of ‘trivial matters’ does not lend itself to a clear and objective definition considering that the Convention is a living instrument. 

 

This amendment is also a major departure from Protocol 14, which inserted this clause to Article 35 of the Convention in the first place. At the height of the Court’s serious backlog crisis in 2004, this explicit condition was inserted to Article 35 precisely to act as a safeguard against the introduction of the ‘significant disadvantage’ requirement  to the admissibility criteria. The Committee of Ministers in its Explanatory Report to the Protocol 14 specifically stated ‘while the Court alone is competent to interpret the new admissibility requirement and decide on its application, its terms should ensure that rejection of cases requiring an examination on the merits is avoided. The latter will notably include cases which, notwithstanding their trivial nature, raise serious questions affecting the application or the interpretation of the Convention or important questions concerning national law.

 

Protocol 15 completely abandons this safeguard clause and the principled position that the so called ‘trivial cases’ may also raise serious questions concerning the interpretation of the Convention or national law. From the perspective of civil society, this amendment is clearly regressive. It removes a valuable safeguard against the risk of a denial of justice to individuals before domestic courts as well as the ECtHR. The human rights NGOs, for example, underlined that by deleting this clause, a human rights case may end up not being examined by a single judicial body at any stage of legal proceedings. In addition, this clause enables cases that are not properly considered by national courts only on procedural grounds to be declared inadmissible by the Court. Given the Court’s increasingly formal approach to admissibility criteria even in manifestly non-trivial gross human rights violation cases, the removal of this safeguard presents further risks of restricting access to the Court.  

 

Conclusion: A Protocol for Ostriches? 

 

Back in 2012, one of the main stated aims of Protocol 15 was to strengthen the implementation of the Convention. Yet, there were neither broad-based consultations with civil society organisations nor were any of the concerns raised by civil society organisations regarding the glaring gap between the stated aims of Protocol 15 and the amendments proposed taken into account. From the perspective of civil society, it was not clear then, nor is it clear now whether any of the amendments discussed in this post can fulfil their purported aims. There are real risks that the emphasis on subsidiarity may create a Convention-lite national judicial culture and that the most vulnerable and the most legal-resource-poor individuals may not be able to reach the Court on time. 

 

In addition, human rights cases raising genuine questions about the interpretation of national laws or the Convention may never see a proper day in court and this newly found emphasis on weeding out ‘non-trivial cases’ may undermine hard won access to court safeguards under Article 6 ECHR. Seen from these perspectives, this is a protocol for the ostriches. It requires significant monitoring, research and advocacy from civil society organisations working with the Council of Europe to ensure that the risks to the effective protection of human rights brought about by this Protocol are visible and are addressed effectively. 

Thursday, 17 June 2021

Blog Symposium on Protocol 15 ECHR - What Implications for Applicants’ Right of Access to the European Court?

Philip Leach
, European Human Rights Advocacy Centre (EHRAC), Middlesex University

More than eight years after it was adopted, Protocol 15 to the European Convention on Human Rights will come into force in August this year, following the final state ratification, by Italy, in April. This short post considers some of the ways in which the Protocol 15 changes may impact upon applicants to the Strasbourg Court.

Time limit reduction

Undoubtedly, the most significant development arising from Protocol 15 for victims of human rights violations in Europe, is the reduction in the time limit within which an application must be made to the Court, from six to four months (from the point at which domestic remedies have been exhausted). This stricture will only start to apply from 1 February 2022 (six months after Protocol 15 enters into force), and it will not be retrospective (meaning that any final domestic decision up to that date will still be subject to the old six months rule).

The six months period was enshrined in the Convention from its inception (Article 35(1) of the Convention) and the shortening of this time limit to four months was one of the states parties’ responses to the continuing over-burdening of the Court, with the aim of reducing the number of applications being submitted. Other proposals considered (with similar aims) have included the introduction of a court fee and a compulsory requirement for applicants to have legal representation, but were rejected by the majority of states, and, indeed, by the Court on ‘both principled and practical grounds’. It remains to be seen whether or not the reduced time period will have its intended effect – quite probably it will do so, simply because it will not be feasible for some applicants and their representatives to submit an application to the Court within a four month period. 

The ‘official’ justifications for this reduction as recorded, very barely, in the Explanatory Report to Protocol 15 are the ‘development of swifter communications technology, along with the time limits of similar length in force in the member States’, which was based on the Court’s own reasoning.  This reference (from eight years ago) to developing communications technology should be carefully heeded, as the Court’s accessibility for applicants still needs to be addressed and improved. For some years, states parties have been able to make all written submissions electronically in every case, but that is still not routinely the case for applicants, who can only use the Court’s electronic communications system (eComms) if invited to do so by the Court (and, importantly, not at the initial application stage, but only following the communication of the case to the government). It also remains an anomaly that interim measures applications still need to be submitted by fax, and that there is no electronic means to do so. 

Some commentators have expressed their concerns, including in this symposium, about the impact on access to justice, and certainly the new four month time limit could present real difficulties; for example, for applicants who are vulnerable or in less accessible rural regions. It is an often intense period in which all the relevant case documents have to be obtained and analysed (and perhaps translated), evidence assessed, and new evidence collected, where necessary, including expert evidence, and everything submitted with the application by post to the Court. Given the additional pressures on applicants (and their representatives) having to file within four months of the close of domestic proceedings, every effort should be made to maximise the use by the Court of electronic filing.

Subsidiarity and the margin of appreciation

Protocol 15 will also take effect to add a reference to the principle of subsidiarity and the doctrine of the margin of appreciation to the Preamble to the Convention, as mentioned in earlier contributions to this blog symposium. The context at the time these provisions were drafted (2012) was one in which a number of states which had historically been strong supporters of the Court and the Convention system were led by administrations which were seemingly rather hostile, in a bid to play to their domestic audiences, by suggesting, inter alia, that a ‘foreign court’ was interfering unduly in sovereign domestic matters such as immigration, and over-playing its hand by acting as a ‘court of fourth instance’. Speaking at the Brighton Conference, the then Court President, Sir Nicolas Bratza, referred to it as a time ‘when human rights and the Convention are increasingly held responsible in certain quarters for much that is wrong in society’ and felt it was necessary to emphasise that subsidiarity ‘cannot in any circumstances confer what one might call blanket immunity’. 

By emphasising in the Brighton Declaration of April 2012, during the UK’s chairing of the Committee of Ministers, the need for the Court to give greater prominence to the notions of subsidiarity and the margin of appreciation, this was, for some, a blunt attempt to try to ‘warn off’ the Court, which itself (very diplomatically) expressed its serious reservations. Cases relating to prisoner voting and the deportation of foreign nationals were in the sights of the UK Government at the time, which had also proposed more far-reaching and regressive changes (for example, to amend the admissibility criteria so that the Court could only accept applications where the national court had made an obvious error), only for them to be voted down by the majority of states.

Such a strategy may have garnered domestic political support amongst some constituencies and media, but of course it ignored the simple fact that both principles had already been thoroughly embedded into the architecture of the system through decades of the Court’s case-law.

The UK Parliament’s Joint Committee on Human Rights was spot on when it suggested that these developments should herald ‘a new emphasis on the primary responsibility of the Member States of the Council of Europe to secure the rights and freedoms set out in the Convention’, rather than signalling that the Court should keep its ‘hands off’. The antagonistic position taken by the Government at the time is also reflected by the Joint Committee’s inclusion of an emphatic statement that ‘subsidiarity and the margin of appreciation, properly understood in the light of the Court’s case-law, are not (….) concerned with the primacy of national law over Convention law, or with demarcating national spheres of exclusive competence’.

As Janneke Gerards discusses in her blog in this series, there has been an interesting academic debate as to whether the Court’s jurisprudence since the Brighton Declaration has in fact proved to be more deferential to states. She argues that there is no particular evidence of this, and that the development of the Court’s case-law is much more nuanced and impacted by a range of different factors. For these reasons, it is hard to see that this aspect of Protocol 15 will have much import for applicants.

Change in admissibility

Given the rather tortuous wording of Article 35 (the Convention’s provision on admissibility), it is tricky to try to explain the change introduced by Protocol 15 to the admissibility rules. In short, it will amend the ‘significant disadvantage’ criterion (which was introduced in 2010) to remove the second safeguard preventing rejection of an application that has not been duly considered by a domestic tribunal.

This criterion was introduced to enable the Court to avoid having to accept ‘minor’ cases, and there is now extensive case-law which clarifies its meaning. Serious concerns have been expressed at the time of its introduction, and subsequently, that it might significantly limit access to the Court (see here, here and here). However, commentators such as Antoine Buyse have shown that, as a result of the way in which the Court has applied it, it has neither led to the reduction in pending cases as hoped, nor has it dented the right of access to the Court in any discernible way.  

The consequence of the amendment to this criterion is that the Court will be able to declare a case inadmissible because an applicant has not suffered a significant disadvantage, even if the case has not been previously considered by a domestic body. This was a change on which the Court simply said it saw ‘no difficulty’. This particular safeguard has been applied in so few cases that its removal is unlikely to have much, if any, impact, given also that the overall ‘respect for human rights’ test remains in place.

Relinquishment to the Grand Chamber

A further consequence of Protocol 15 is to remove the right of the parties to a case to object to relinquishment of jurisdiction over it by a Chamber in favour of the Grand Chamber

The right to object to relinquishment has been treated as a right of veto, although arguably it should not have been. Article 30 of the Convention enables the Court to relinquish a Chamber case to the Grand Chamber, unless one of the parties objects. Read together with Rule 72 of the Rules of Court, this process requires a ‘duly reasoned objection’ (within one month). That wording implies that the Court should carry out an evaluation of any objection – therefore it should, arguably, not be treated as an automatic right of veto. In any event, the effect of Protocol 15 is to clarify the position that the parties cannot object to relinquishment. This is a positive and welcome development, which should also speed up the process, as indicated in the Explanatory Report.

The basis of relinquishing a case to the Grand Chamber is that a case raises a ‘serious question affecting the interpretation of the Convention or the Protocols’, or where there might be inconsistency in the case law. If the Court decides that either of those factors applies to a case, then it is right that neither of the parties can automatically veto its referral to the Grand Chamber, especially where there may be no plausible reason for blocking its transfer. It is certainly EHRAC’s experience that, on occasions, states have acted to stop relinquishment to the Grand Chamber, in spite of the Court’s view that it was appropriate, and where the state’s reasoning has not (in our view) been credible. Furthermore, there is no little irony, that where that happens, once a Chamber has delivered its judgment, it is possible for the same party to request referral of the case to the Grand Chamber at that point (under Article 43).

As Lize Glas’ blog in this symposium shows, the number of relinquishments remains very low. Nevertheless, this amendment may be important in certain circumstances. According to the Explanatory Report, this change should also lead to a sharpening and clarification of the particular focus of the Grand Chamber, referring to ‘…the expectation that the Grand Chamber will in future give more specific indication to the parties of the potential departure from existing case-law or serious question of interpretation of the Convention or the Protocols thereto’. This additional clarity will be beneficial to the parties. As reasons for relinquishment need not be provided by the Court (Rule 72(3)), it has not always been clear to the parties why a case has been referred on to the Grand Chamber; especially where a case raises a number of novel or difficult issues, it may not be at all obvious what is the ‘serious question affecting the interpretation of the Convention’ which the Court proposes to grapple with. 

One example in EHRAC’s experience was Denisov v Ukraine, one of the cases concerning judicial independence which followed the ground-breaking judgment in Oleksandr Volkov v UkraineDenisov concerned complaints under Articles 6 and 8 of the Convention, and Article 1 of Protocol No. 1, and a further argument under Article 18 was included latterly by the applicant. For its part, the Ukrainian Government tried (unsuccessfully) to argue before the Grand Chamber that the Vilho Eskelinen test (as to the applicability of Article 6 in civil cases) should be reconsidered. It would appear, however, in hindsight, that the reason for relinquishment was to enable the Grand Chamber to assess the applicability of Article 8 to the dismissal of Mr Denisov as president of the court of appeal. At the time, that was not clear or obvious to EHRAC (who were representing the applicant). It is interesting to recall that in 2013, the Court indicated that if things are not clear enough for the parties in a situation of relinquishment, questions can be raised with the Court Registry which can assist.

Conclusion

The effects of Protocol 15 will not be earth-shattering. The debates about reforming the Convention system will no doubt continue. With pending cases still at 65,000, the Court will now be prioritising so-called ‘impact cases’ – a move which the President of the Court, Robert Spano, has described as a ‘paradigm shift’. To finish, as many reform questions continue to be thrashed out, I can do no better than remind readers of something else Sir Nicolas Bratza said about the Convention system back in 2013:
‘We should not lose sight of what that system is intended to do, that is to monitor compliance with the minimum standards necessary for a democratic society operating within the rule of law; nor should we forget the Convention’s special character as a treaty for the collective enforcement of human rights and fundamental freedoms. It is no ordinary treaty. It is not an aspirational instrument. It sets out rights and freedoms that are binding on the Contracting Parties’.
My thanks to my colleagues Jess Gavron and Alice Donald for their very helpful comments on an earlier draft.

Wednesday, 16 June 2021

Blog Symposium on Protocol 15 ECHR - The Court: Criteria for Office and Relinquishment

Lize R. Glas, Faculty of Law, Radboud University 
 
In this blog post, I will discuss two amendments that Protocol 15 will bring. These two amendments concern the criteria for office, more specifically the age limit of candidates for office, and the relinquishment of jurisdiction by a Chamber to the Grand Chamber.  
 
Criteria for office  
 
Currently, paragraph 2 of Article 23 ECHR stipulates that the terms of office of the Strasbourg judges expire when they reach the age of 70. This age limit was introduced by Protocol 11, and the rationale behind it was that ‘most domestic legal systems’ knew an age limit.  
 
Protocol 15 will delete paragraph 2 of Article 23 ECHR and will insert the following paragraph into Article 21 ECHR ‘Candidates shall be less than 65 years of age at the date by which the list of three candidates has been requested by the Parliamentary Assembly …’. Consequently, the maximum age of a Strasbourg judge increases from 70 to 75. This amendment aims to prevent experienced judges from having to leave office before they completed their term, thus reinforcing ‘the consistency of the membership of the Court’ (see also here) and potentially decreasing the turnover of judges.  
 
The practical significance of this amendment is probably limited, considering that the average age of a judge has dropped from about 65 to 56 on 25 May 2021, with the youngest judge being 37 (judge Yüksel) and the oldest judge being 68 (judge Pejchal). Eight judges are still in their forties. As a side-effect of Protocol 15 however, the average age of the judges may increase considering that the maximum age has increased. Currently, only two judges will need to retire because they turn 70 before their term expires (judges Ravarani and Zünd). The entry into force of Protocol 15 comes too late for them however, because the amendment will only apply to judges elected after the protocol’s entry into force. 
 
This amendment is uncontroversial and is on a par with the increasing life expectancy and, connected with that, the ‘trend of rising retirement ages’ in domestic systems, although ‘international tribunals do not, as a general rule,’ establish an age criterion. The Court welcomed the new criterion, noting that it ‘should be beneficial in future by fostering the election of very highly experienced candidates as judges, whose services may be retained beyond an age limit that no longer seems imperative in the present day’ (see also here).  
 
The only point of discussion after the adoption of the Brighton Declaration seems to have been when exactly a judge should be younger than 65. The Brighton Declaration proposed ‘at the date on which their term of office commences’. The drafters of Protocol 15 turned this into: ‘at the date by which the list of three candidates has been requested by the Parliamentary Assembly’. The reason for departing from the Brighton Declaration was that the ‘process leading to election of a judge … is long’, which necessitated avoiding that a candidate is ‘being prevented from taking office for having reached the age limit during the course of the procedure’.   
 
A question that remains with me is whether the states, when drafting the Brighton Declaration, ever considered returning to the text of the original Convention, which did not include an age limit. Deleting the age limit altogether has the potential of reinforcing the consistency of the Court’s membership, in the same way as the current amendment will probably do. Moreover, letting go of the age limit would have brought the criteria for office more in line with those of other international courts and would have made the Convention more future proof in case the life expectancy continues to increase in Europe. Additionally, it would have ended to ‘the discretionary age limit for judges’, which is, according to Schabas, ‘in itself incompatible with article 14 of the Convention and Protocol No. 12’.   
 
Relinquishment  
 
A Chamber can relinquish jurisdiction to the Grand Chamber when a case raises a serious question affecting the interpretation of the Convention (Article 30 ECHR) and must do so when the Chamber judgment might have a result inconsistent with a previous judgment (Rule 72(2) of the Rules of Court). Especially in the latter scenario, the Grand Chamber is ‘[t]he Convention mechanism for avoiding inconsistency in the case-law’. This is an important task, because even though the Court lacks a formal doctrine of precedent, it ‘has long recognised that “it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without cogent reason, from precedents laid down in previous cases”’.  
 
Currently, the parties have the right to object to relinquishment. Despite the requirement in Rule 72(4) of the Rules of Court that the objection is ‘duly reasoned’, the right comes down to a veto, since it is ‘sufficient for one of the parties to indicate that it wishes to have the case examined by a Chamber’. Protocol 11 gave the parties this right, because the terms of reference that the Committee of Ministers formulated in 1993 for the drafters of the protocol included the requirement that the new court had to be able to engage in ‘a re-hearing in exceptional cases’. By giving the parties this right, they could protect their right to request a re-hearing by the Grand Chamber (Article 43 ECHR). Apart from protecting its right to request referral, another reason for a party to object to relinquishment may be that it has an ‘interest in delaying the proceedings’.  
 
Protocol 15 will remove the right to object to relinquishment. The Court proposed this amendment and the states parties took this idea up in the Brighton Declaration. The first aim of the amendment is to contribute to consistency in the case-law of the Court’. The other is to accelerate ‘proceedings before the Court’. The latter aim could be achieved because the parties have one month to object to relinquishment (Rule 72(4) of the Rules of Court). Additionally, time and resources will be saved, because one in three cases in which a Chamber could not relinquish jurisdiction because a party objected ended up before the Grand Chamber eventually as a result of referral.* This is not surprising, considering that the requirements for relinquishment and referral are comparable. 
 
In numerical terms, the amendment will not be very significant. Not many cases are relinquished (2 in 2020, 5 in 2019 and 2018, 6 in 2017 and 2 in 2016) and it is even less common that a party objects to relinquishment. This happened twelve times during the twenty-three years that have passed since Protocol 11 entered into force.* Still, each additional Grand Chamber judgment that can be adopted as a result of the amendment should be welcomed, because these judgments are particularly authoritative. To illustrate: Lord Hope of the UK Supreme Court described a unanimous decision of the Grand Chamber as ‘in itself, is a formidable reason for thinking that we should follow it’.  
 
Interestingly, the drafters of Protocol 15 express three expectations in connection with the amended Article 30 ECHR. First, they expect ‘that the Chamber will consult the parties on its intentions’. The Court has agreed to ‘accommodate’ this. Consequently, although the parties no longer have the right to object to relinquishment, they will still have the opportunity to give input.  
 
Second, the drafters write that ‘it would be preferable for the Chamber to narrow down the case as far as possible, including by finding inadmissible any relevant parts of the case before relinquishing it’. In response, the Court explains that its current practice is ‘to consider issues of admissibility and merits simultaneously’, as is envisaged by Article 29(1) ECHR. The Court adds that it is ‘of course open to a Chamber to dispose of part of an application by means of an admissibility decision and then to relinquish jurisdiction in favour of the Grand Chamber’. In this respect, the Court also points out that is has amended Rule 27A of the Rules of Court (single-judge formation), making it possible ‘for Presidents of Section, when communicating a case to the Government, to simultaneously strike out any manifestly ill-founded or plainly inadmissible complaints from a file’. According to the Court, this amendment contributes to a more focused procedure before the Grand Chamber if a case is relinquished. In short, the Court seems to agree that narrowing down a case is important, but proposes to do this during the process of communicating a case rather than at a later procedural stage.   
 
Lastly, the drafters expect ‘that the Grand Chamber will in future give more specific indication to the parties of the potential departure from existing case-law or serious question of interpretation’. It is probably hard for the Court to fulfil this expectation, because it requires the Court to share a glimpse of its judgment with the parties before it has even adopted its judgment. Moreover, this request could, like the invitation in the Brighton Declaration to make rulings available to the parties ‘a short period of time before their delivery in public’, ‘undermine the important principle of secret deliberations’. Perhaps for these reasons, the Court does not give in to this request. Instead and although admitting that it is important that the parties know what issues they should address ‘in depth before the Grand Chamber’, the Court notes these issues should be ‘clear enough’ in most cases and, if not, a party ‘may raise the matter with the Court's Registry, which can provide assistance’. 
 
Final remarks 
 
The Court welcomed the amended age criterion for office and proposed the amendment regarding relinquishment itself. Therefore, the Court is probably eagerly awaiting the day on which they take effect. As a probable consequence of these amendments, more judges can finish their term, older judges are elected, relinquishment takes place more often and the Grand Chamber adopts more judgments. On a more abstract level, the two reforms potentially contribute to enhancing the consistency of the Court’s membership and case law. Neither these two amendments nor any of the other changes that Protocol 15 brings will ‘fundamentally change the Convention system’s object and purposehowever. 
 
* The figures about objections to relinquishment are based on two HUDOC searches in all Chamber judgments adopted in the period: 1 November 1998 - 25 May 2021. The first search used the word ‘relinquish’; the second the word ‘dessaisir’.