Janneke Gerards, Montaigne Centre for Rule of Law and Administration of Justice, Utrecht University
Towards Protocol 15
About fifteen years ago, European fundamental rights scholars, judges and politicians were confronted with a new reality. Until then, most scholars had admired the way in which the European Court of Human Rights managed to develop influential human rights doctrines. National politicians were keen to make use of the legal arguments offered by the Court’s case-law, and victims of human rights violations increasingly found their way to the Court to obtain individual redress. Of course, criticism of the Court’s work could be seen, but in the first decades of its existence, the Court’s supporters seemed to outnumber its critics by far.
By the turn of the millennium, the tables slowly seemed to turn: Domestic concerns about different aspects of the European project were on the rise. At first these seemed to be mainly about the European Union, culminating in a resounding rejection of the European Constitutional Treaty in the Netherlands and France. But then they started to spill over to the Convention and the ECtHR, fuelled by a number of controversial judgments on prisoners’ voting rights, social security and migration matters. A famous manifestation of the criticism levelled at the Court was a 2009 speech by Supreme Court judge Lord Hoffmann, in which he argued that the ECtHR was going too far by imposing overly extensive Convention interpretations on the States, thereby impinging on their sovereignty. Especially in the United Kingdom, politicians were eager to embrace such criticism, at some point making it a realistic prospect that the UK would leave the Convention. Moreover, the message was quickly picked up by other domestic scholars, judges and politicians, even in States that had always been regarded as particularly loyal to the European project, such as the Netherlands. They, too, increasingly expressed concern about the Court’s evolutive and dynamic interpretation, its purported lack of respect for the subsidiarity principle, and its generally activist stand that made the Convention go beyond what the States had consented to. It has been well-documented that such criticism spread in many States, even if its origins and manifestations greatly differed.
The Brighton Declaration and Protocol 15
The surge of antagonism towards the Court culminated in the famous Brighton Conference of 2012, where the European government leaders sat together to discuss how it could be properly addressed. One main solution that they conceived of was to make a change to the Convention by drafting a new Protocol – Protocol 15 – to add a new recital to the Preamble, which would help to clearly define the respective roles of the States and the Court. This recital would read as follows: ‘Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.’ It was hoped by many of the Court’s critics that such a clear recital would make the Court understand that it should leave sufficient leeway to national laws, policies and decisions, and not intrude on national sovereign choices.
Changed problems, challenges and issues
Roughly eight years on, on 1 August 2021, Protocol 15 will enter into force, making the recital an actual part of the Convention. But what seemed to be an extremely urgent (as much as dividing) instrument in 2013, now appears to have lost much of its bite. In recent years the criticism of the Court in the Netherlands has largely died down, while the UK has focused much (albeit certainly not all) of its attention at the EU rather than the ECHR. Although there have been some efforts to revive the type of criticism that triggered the Brighton Declaration and Protocol 15, they have hardly succeeded, as is testified by the 2018 debate surrounding the Copenhagen High-Level Conference and the much toned-down version of the Copenhagen Declaration that followed on this.
Indeed, over the past years, concerns about compliance with the Convention and implementation of the Court’s judgments seem to have shifted. All eyes are now on Russia, which ever more openly defies the Council of Europe and the Convention system, and will refuse to comply with ECtHR judgments if they are contrary to the Russian constitution. They are on Turkey, where the human rights situation is highly worrying ever since the attempted coup in 2016, and where President Erdogan has stated that the Court’s judgments are not binding. Our eyes are on Azerbaijan, where the Court has found ‘a troubling pattern of arbitrary arrest and detention of government critics … in defiance of the rule of law’, yet the government does nothing to implement the Court’s judgments (regardless of the Court’s 2019 express holding that it thereby does not fulfil its obligations under the Convention). And they are on Poland, Hungary and other States where the independence of the judiciary and other rule of law guarantees are systematically broken down, the Court’s judgments and many other Council of Europe efforts notwithstanding.
On top of these highly worrying developments, the need to fight the corona virus has created yet another challenge. In many States, emergency regimes are currently used to allow for restrictions of important fundamental rights guarantees, often disrespecting important rule of law values. It is very likely that such ‘temporary’ measures and restrictions will have a great impact on the protection of Convention rights for many years to come.
The origins and manifestations of these new challenges to European protection of fundamental rights are complex and multifaceted, and it is to be expected that the Convention bodies will have to invest a great deal of time and effort in finding innovative and smart ways to continue to protect he Convention rights effectively. It is improbable that a highly rhetorical Preamble recital – which in fact does no more than simply restating the well-recognised notions of subsidiarity and the margin of appreciation – can contribute to solving these pressing problems in any meaningful way.
Changes in the Court’s approach
In the meantime, the Court itself has been working hard to deal with the domestic criticism and retain and increase the legitimacy of its judgments, although scholarly findings differ as to how it has done so and to what extent its judgments reflect a real change of strategy. Several scholars have endeavoured to show that ‘Brighton’ can be regarded as an ‘exogenous shock’ or a ‘turning point’ that has brought about considerable change in the Court’s jurisprudence. They have collected data showing that ever since Brighton, the Court has referred to the margin of appreciation and the principle of subsidiarity more often and it seems to use these notions to show deference to the States Parties in a more ‘robust’ manner. Other scholars have argued that the Court has responded to national sensitivities in different ways, e.g. by using an incremental, piecemeal approach to work change, relying on procedural review, adopting an approach of variable geometry, or making strategic use of admissibility decisions. According to some research, the Court nowadays mainly uses such other techniques to strategically shape its supervisory role; even if it seems to refer to the margin of appreciation doctrine more frequently, these references are of an increasingly empty and rhetorical nature. Moreover, a number of scholars have submitted that the Court’s approach towards the subsidiarity principle is complex and multifaceted, it is constantly developing, changing and adapting to new developments, and, on balance, there are signs that the Court’s review is not more deferential than it was before the ECtHR.
Hence, even if the Brighton process may have had a tangible impact on the Court’s judicial strategies and the awareness with the Court’s judges of the domestic reception of their reasoning, there is significant evidence showing that that the Court has moved beyond the stage of making easy references to subsidiarity and the margin of appreciation to help it find an adequate response. In fact, its present-day judicial tactics are much more sophisticated, nuanced and refined than the new recital to the Preamble would seem to suggest.
Considering all this, it is questionable if the entry into force of Protocol 15 to the Preamble will have any measurable impact. The nature and location of national discontent and problems of disrespect of the Convention have changed too much to make the notions of subsidiarity and the margin of appreciation into useful and practicable tools to address them. Moreover, even if the complex notion of subsidiarity still is a cornerstone of the Court’s case-law and it is often referred to in the Court’s judgments, it seems that it has found many other ways to deal with national sensitivities and criticism than by simply leaving them a margin of appreciation.
Thus, the idea of adding the notions of subsidiarity and the margin of appreciation to the Preamble may seem to have been a sound response to a crisis that was much alive a decade ago, but it has now been replaced by very different issues and problems, and is solved in other ways. Indeed, the Protocol seems to have codified yesterday’s solutions to yesterday’s problems, but it will not help to address those of today, let alone those of tomorrow.