Friday 31 March 2023

Wishes for Reykjavik

What Can the Fourth Council of Europe Summit Have in Store for the Court? 

by Lize R. Glas, Radboud University 

On 16 and 17 May 2023, a summit of heads of state and government of the Council of Europe (CoE) will take place in Reykjavik, Iceland. This is only the fourth such summit in the almost 74 years of existence of the organisation. With the war in Ukraine, which led to the expulsion of Russia from the CoE, the organisation is ‘at crossroads in its history’ and a summit was, therefore, called for. Other challenges for the CoE include democratic backsliding and erosion of the rule of law. The earlier three summits were also convened against the backdrop of great upheaval: the fall of the Berlin wall (1993), significant enlargement of the organisation (1997) and a series of terrorist attacks (2005) (see also here). The outcome of a summit – a declaration and action plan – can have major consequences for the Court. 

In this blog, I will first summarise the consequences of the previous summits for the Court. The main part of the blog explains what the upcoming summit can have in store for the Court, based on what five existing ‘wish lists’ for the summit want for the Court. 

The first list led to convening the summit and is the Report of the High-Level Reflection Group of the CoE. Secondly, the Parliamentary Assembly (PACE) adopted a wish list in the form of a recommendation(see also the underlying report). The third list is the The Hague Civil Society Declaration on CoE Reform38 civil society organisations (and counting) endorsed this Declaration, which was the result of a civil society summit organised by the Campaign to Uphold Rights in Europe (CURE) and the CoE’s Conference of International NGOs (CINGO) at the end of February. The latter also made a submission to the High-Level Reflection Group, which I also take into consideration, as I will do with another such  submission, which was prepared by the European Network of National Human Rights Institutions (ENNHRI). The last ‘wish list’ that I consulted is a letter written by Amnesty International in which it provides recommendations for the future of the CoE, in response to a call for consultations launched by the Icelandic Presidency of the Committee of Ministers (CoM). The Court itself also gave input to the High-Level Reflection Group, but this document is not available publicly. 

The previous summits and the Court 

The 1993 Vienna Declaration qualified an ‘undertaking to sign’ the Convention ‘within a short period’ as ‘fundamental’ for new member states of the CoE, thus increasing the importance of the ECHR and its Court. This instruction is now ‘a collective opinio juris, and its content has been confirmed by the practice followed in examining applications for membership’. Equally important, the states resolved to establish a single Court, thus giving green light to abolishing the part-time Court and the European Commission on Human Rights – a reform that changed the Convention system fundamentally. 

The 1997 Final Declaration, which was adopted in Strasbourg, affirmed the states’ determination to ensure full implementation of the CoE treaties, welcomed the ratification of Protocol 11 ECHR by all states and instructed the CoM to take the necessary steps to set up the single Court on 1 November 1998, as indeed happened.

In the 2005 Warsaw Declaration, the states expressed their strong commitment to implement the measures adopted at the CoM’s 114th Session. In that session, the ministers had adopted three recommendations to the members states (on improvement of domestic remedieson the verification of the compatibility laws and administrative practice with the Convention standards; and on the Convention in university education and professional training). The Declaration also led to the establishment of the Group of Wise Persons, tasked with drawing up a ‘comprehensive strategy to secure the effectiveness of the system in the longer term’. Quite a number of their ideas have not been implemented, but one idea planted the seed for a new protocol: Protocol 16, which permits the highest courts in the signatory states to request an advisory opinion from the Court. 

In the Warsaw Action Plan, the states pledged to ‘ensure the long-term effectiveness’ of the Convention ‘by all appropriate means’. As a consequence of this pledge, ‘more than 80% of the increase in the [CoE’s] budgetary posts benefited the Court’ in 2000-2020 according to the High-Level Reflection Group. This is only telling of the limited increase in budgetary posts and did not mean that the Court’s budgetary situation was rosy, since its regular budget allocation decreased from 629 posts in 2011 to 585 in 2021.

More budget for the Court (and the CoE at large) 

The most urgent practical wish is more budget for the CoE – without this ‘all pledges to re-vitalise the CoE are meaningless’, according to CURE. The CoE’s real budget decreased in the period 2010-2020 as a consequence of the CoM’s zero-nominal-growth policy. It now maintains a policy of zero-real-growthThese policies, coupled with Russia’s ‘refusal to pay its outstanding dues have put the Council of Europe in a difficult budgetary situation’. Although the states have made voluntary contributions in response, this is only a short-term solution. 

The half a euro per citizen living in the CoE that the states contribute to the regular budget is, according to the High-Level Reflection Group ‘unquestionably insufficient’, especially when compared to, for example, the budget of the City of Strasbourg, which amounts to 2000 euros per inhabitant. The PACE proposes to increase the budget by reviewing the scales of the contributions in order to raise the minimum contribution and by exploring whether the EU can contribute as part of its strategic partnership with the CoE. CURE suggests a budget of one euro per citizen as a ‘starting point for discussion’. 

Since the Court’s budget (76,816,700 euros for 2023) is not separate from that of the CoE, this wish for more budget is also relevant to the Court. CURE also specifically asks for extra funding for both the Court and the Department for the Execution of Judgments of the Court (Execution Department). The High-Level Reflection Group, CINGO and ENNHRI also flag the need to increase the Department’s budget (see also here). Both the previous President of the Court, Robert Spano, and the current President, Síofra O’Leary, have asked for further resources for the Court. As President O’Leary put it: the summit should ‘translate the discourse of values into material support’ (see also here).

Accession of the EU to the ECHR 
Both the High-Level Reflection Group and the PACE hope that Reykjavik will give the accession negotiations a boost so accession will be finalized sooner rather than later. There is a possibility that the states can give their approval to the revised draft accession instruments almost ten years after the Court of Justice of the EU declared the previous accession agreement invalid with the TEU. The CDDH Ad Hoc Negotiation Group, agreed to provisionally adopt these instruments, ‘with no delegation indicating any reservation’. Moreover, the CDDH will hold an extraordinary online meeting almost six weeks in advance of the summit to adopt the ad hoc group’s report. To my surprise, CINGO deems accession ‘technically unfeasible’ and argues that the ‘values and power of the CoE must be developed in its own right, in the service and with the full participation of all its members both within and outside’ the EU. Amnesty International does support accession. 
Additional Protocol to the ECHR on the environment
The words ‘environment’ (apart from ‘democratic environment’) and ‘climate’ are strikingly absent from the High-Level Reflection Group report. The word ‘climate’ only features in the chairperson’s biography, which makes the absence even more striking, since the chair – Mary Robinson – is Adjunct Professor for Climate Justice. Still, it can be expected that the environment will be on the agenda of Reykjavik because the environment is one of the four themes of the Icelandic CoE presidency. Moreover, Iceland proposed to look ‘at the right to a clean, healthy and sustainable environment’ during its presidency. The PACE proposes the environment as a separate agenda item and hopes that the summit supports the drafting of a binding instrument on the right to a healthy environment in the form of an additional protocol to the Convention, a hope that CURE and Amnesty International share. 

In 2021, the PACE made a similar recommendation, to which the CoM replied that it had instructed the CDDH to carry out a feasibility study. This is a more positive reply than the CoM’s previous reply to a similar PACE recommendation, when the CoM answered that an additional protocol was not ‘advisable’. Based on the more positive reply and with Iceland’s priorities and the latest alarming IPCC report in mind, perhaps sufficient momentum has been gained to give political approval to what will be Protocol 17 ECHR (see also here). The summit may come too early, however, since the CDDH Drafting Group on Human Rights and the Environment will discuss only the first two chapters of its feasibility study on 4-5 May 2023.

Execution of the Court’s judgments 

The last wish on the list, which is shared by all institutions, is improved execution of the Court’s judgments. The gist of what the High-Level Reflection Group suggests is a more political, comprehensive and co-operative approach to the execution process, in particular when execution is flawed because of a lack of political will. This approach requires ‘enhanced engagement’ with the respondent state and with different domestic actors, not only by the CoM at its human rights meetings, but also by the PACE and even the EU. The latter can, for example, as Amnesty International proposes ‘remind its member states of their obligation to implement ECtHR judgments, including in the annual Rule of Law Report and dialogues’ and ‘call for the implementation of judgments in the framework of its relations with non-EU member states, in particular those in the path to accession’.  
The Reflection Group proposes that the CoE should not just identify Convention violations, but ‘also contribute to finding sustainable and acceptable solutions’, which ‘may require a change in paradigm’, although I wonder whether the Execution Department does not already contribute to this. The PACE echoes these ideas and advocates for ‘strengthening relevant co-operation activities and introducing a procedure for enhanced political dialogue in cases of non-compliance’. This emphasis on co-operation should not lead to losing sight of the fact that, as Amnesty International points out, certain states systemically refuse to comply with the Court’s judgments, Turkey’s outright refusal to comply with the infringement judgment in the case of Osman Kavala being a case in point. The NGO proposes that the summit condemns this refusal ‘in the strongest possible terms’ and recommends the Secretary General, the CoM’s Presidency and the PACE President to visit Osman Kavala in prison.
Probably with cases like those of Osman Kavala in mind, the High-Level Reflection Group recommends the summit to consider whether ‘graduated sanctions’ can be imposed when a state persistently refuses to abide by a judgment. Comparably, CURE proposes to develop new types of sanctions. In 2000, the PACE recommended amending the Convention to introduce fines. The CDDH’s opinion on this proposal, which was appended to the CoM’s negative response to the PACE, mentioned a number of questions that the proposal raised: 
‘would such a system be efficient, would it be so outside certain exceptional situations (such as when a government is persistently refusing to fulfil its obligation to abide by a judgment)? Would, furthermore such a system be at all appropriate when the execution of the judgment requires the adoption of general measures, notably legislative ones, which may require lengthy procedures at the national level?’ 
The Venice Commission also wondered whether penalties would be of added value and offered to carry out a study to clarify this. Perhaps the questions of the CDDH and the offer of the Venice Commission will serve to inspire the participants at the summit to order such a study. 
Although the CoM can currently not impose sanctions (other than taking away a state’s rights of representation or its membership under Article 8 of the CoE statute), it can start infringement proceedings against a state that refuses to abide by a Strasbourg judgment under Article 46 (4-5) ECHR.  CURE proposes that the CoM applies this procedure ‘with greater speed and transparency and in a wider range of cases’. So far, the procedure has only been applied in the case of Osman Kavala as was noted above and in the factually comparable case of Ilgar Mammadov v Azerbaijan. Amnesty International focuses on the execution of infringement judgments, emphasising that an infringement judgment ‘should automatically trigger a collective response’ of the CoE’s statutory bodies and the states. Additionally, Amnesty International submits that the execution of these judgments should be included in every ministerial meeting at the end of a presidency (including in Reykjavik where this topic should be a separate agenda item) and that a conference should be organised when a state refuses to execute an infringement judgment. 
The more specific proposals come from CURE, suggesting, among other things, that the states encourage the Court to be more precise in its judgments about execution measures. The Execution Department would also welcome this. The High-Level Reflection Group notes about this idea that the Court’s guidance ‘gives an indication as to the choice of implementation measures; the choice itself remains a prerogative of the state party’. 

I am not sure that the Court would agree with this statement. As one of its previous Judges explained: the Court has ‘repeatedly’ prescribed (not merely suggested) execution measures and this practice has ‘a solid legal basis’, both in the Convention and in CoM documents. When the Court prescribes an execution measure in the operative provisions of its judgment, choosing the measure is outside the prerogative powers of a state (although the Court does not usually describe a measure in detail, so the respondent state can fill in the details). Even in the absence of a prescription of the Court, choosing execution measures is, I would argue, never the exclusive prerogative of the state, because the CoM is responsible for supervising the execution process under Article 46(2) ECHR.
So what can the fourth Council of Europe Summit have in store for the Court? 

The overview of what previous summits had in store for the Court demonstrates that a summit can have major consequences for the Court and can serve to express approval of already adopted reforms and promulgated ideas. However, the declarations did not include any detailed reform plans, which are left for other occasions, such as high-level conferences on the Court’s future, regular CoM sessions and working groups. We should, therefore, probably not expect any detailed proposals regarding the Court from Reykjavik, despite some of the current wishes being fairly specific. 

Based on the different wish lists, it is likely that these points will be subjects of discussion in Reykjavik: not only renewed support for the CoE’s founding principles and the Court’s authority, but also additional budget to turn support into action, approval of the EU accession instruments, an addition protocol to the ECHR on the right to a healthy environment and new approaches to the execution of the Court’s judgments. Only time will tell whether these points will make it to the declaration. 

Lize R. Glas is associate professor of international and European Law at Radboud University and member of the CURE Advisory Council.