Wednesday 5 April 2023

The Court's Own Reykjavik Memorandum

Whether coincidental or not, but after last week Lize Glas reported on this blog that the Court's own memorandum for the Fourth Summit of Heads of State and Government of the Council of Europe was not yet public, just yesterday it has been put on the Court's website. The memorandum, adopted on 20 March by the Plenary Court, is the Court's own message directed at those who will gather in the Icelandic capital next month. 

In a nutshell, it is a very diplomatically worded call to the state parties to the ECHR to put their money where their mouth is. The Court asks for commitment to the Convention system, including in the shape of providing sufficient resources. The Court squarely, and one may obviously not be surprised about this, underlines the centrality of the ECHR and its mechanisms to uphold and defend the values of democracy, rule of law and human rights which the Council of Europe stands for. It describes its own judgments and decisions as making these values concrete. In the Court's own words "A strong Court ensures a strong Council of Europe, and vice versa." - echoing in a way one of the other 'wish lists' for Reyjavik, The Hague Civil Society Declaration on Council of Europe Reform, on which we reported earlier, which states "The CoE needs civil society as civil society needs the CoE." Both documents show how the ECHR  is a legal-political ecosystem that can only function well if each of its components is in a healthy state and works productively with the others.

The memorandum has a didactic edge, pointing out how political stability, rule of law, good governance, economic growth (sic) and strong democratic institutions interrelate. It emphasises how strides have been made through the reform process of the ECHR system in the past decade, both through steps taken by state parties but also by the Court's own efforts to become more efficient, connect more strongly with domestic courts, open up to civil society interventions and more. Large swathes of the backlog of cases have been tackled, but with new waves of applications coming in, often on complex and systemic issues, the Court emphasises that its own internal improvements in working methods simply do not suffice. Not just because the quantity of cases is an issue, but also because of - as the Court identifies in a thinly veiled wake up call - political pressure on its own independence and impartiality as well as in relation to the execution of its binding judgments and decisions.

In this context it calls for strong renewed commitment by the state parties. Concretely in three areas: (1) resources; (2) accountability in inter-state and confect-related cases; and (3) execution of judgments.

In terms of resources, the shortages are made very explicit: in the last decade, the Court lost 51 posts, 7% of its staff is financed by voluntary contributions and then there is voluntary help in kind in the shape of secondments from national institutions  It also points out that, unlike other parts of the Council of Europe, it has no voluntary contributions from the part of the EU - an element that puts the ongoing (and currently seemingly almost finalised) EU accession negotiations in a different light as well. In short, as those following the Court know, there has been and still is a shortage. Concrete action to sustainably fund the Court is needed - a call that aligns with those of the other wish lists for Reykjavik.

Secondly, in terms of the inter-state and conflict related cases, the Court obviously points to the Russian invasion in Ukraine and its consequences, including Russia no longer being a party to the ECHR, but the Court still having to deal with all pending applications related to it. In addition, inter-state cases are complex and time- and resource-consuming. For all such cases, the crucial importance of accountability - and thus of means to deal with such cases - again demands support by way of funding.

Finally, in terms of execution, again the Court's call aligns with those of the other wish lists analysed on this blog last week. The vicious circle between faltering execution of judgments and the influx of new cases because of unresolved systemic or large-scale human rights issues is again identified. The fact that 4 out of 5 cases before the Court relate to issues legally clarified in well-established case-law and/or to repetitive cases, both pointing to problems in the actual implementation of the Convention more broadly at the national level. These are well-known facts of course and the Court can do little more, as it does in this memorandum, than to call for the umpteenth time for states to re-affirm their commitment to the execution of the Court's judgments.

Trying to grab the momentum - "as war rages on European soil..." (sic) - the Court with this document issues another strongly worded call which one may hope will be  finally taken up - the geopolitical context in Europe does not bode too well in that sense. The Court in the memorandum rightly calls the Convention system "the beating heart" of the Council of Europe's human rights protection. One may add: for the heart to keep functioning, it needs less stress and more oxygen - and only the states can make this happen.