‘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’.
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 Ukraine. Denisov 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.
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:
My thanks to my colleagues Jess Gavron and Alice Donald for their very helpful comments on an earlier draft.
Geplaatst door Antoine Buyse