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’.   
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’.