The Dialogue
The Steering Committee for Human
Rights (CDDH) has just published a Preliminary Draft Text for the
Outcome Document Containing Elements for a Political Declaration. Most of this document
is dedicated to the issues of migration, something that occupies the minds and
hearts of the member states. I am sure that this part of the report and
subsequent declaration will attract a lot of academic attention. The commentary by
Natasa Mavronicola on Article 3 ECHR already engages with
some of the core issues. I will look at another part of this document, namely
the dialogue between the states and the European Court of
Human Rights (the Court or the ECtHR) which is included in its final section.
Before I consider this part of the
document, I need to make an introductory remark. The context in which the formal
session of the Committee of Ministers in Chisinau is going to happen should not
be ignored: the states are trying to influence the Court and to reduce its
impact on human rights protection in Europe. Looking at how the recent discussions
around the ‘reform’ of the Court and Convention have taken place, it is perhaps
the notion of pressure that more precisely captures the current iterative and asymmetric
nature of interaction and intentions
between the Court and the states. This means that even those ideas that could
have been seen positively in other circumstances have to be treated with
caution now. With this principle in mind, I will review what this less
controversial part of the draft document has to offer.
This section of the draft document
discusses ‘dialogue’, which, in my view, does not capture the fact that this
exchange is taking place between vastly different actors with significantly
different procedural and political roles. I explored this exchange in the
context of feedback loops previously and argued
that giving the opportunity to the states to voice their concerns is a positive
thing which can prevent exit from the organisation. That said, a particularly
delicate balance must be maintained between the legitimate articulation of issues
and the exertion of pressure on the Court. While the former may be both
appropriate and constructive, the latter is clearly unacceptable. By way of
example, the well-known leaked letter of nine cannot be characterised
as a form of feedback; rather, it constitutes a clear instance of abstract
political pressure on the Court.
Much like I did in my paper, the
CDDH begins this section by presenting what might be described as a “shopping
list” of potential feedback loops. This is one of the challenges that the
drafters of CDDH draft document had to tackle, namely that the Court already
engages extensively in feedback loops with member states. This exchange is done
through visits, regular meetings with higher national courts and other
authorities, through the Superior Courts Network, various formal and informal
routes, before and after certain judgments are adopted. So, the exchange of
feedback between the Court and member states has not been absent. This part of
the draft document mostly elaborate on mechanisms that have already been in
operation for many year but some suggestions are more controversial which practical
operation and implications are not immediately apparent. In this blog, I will
zoom in on three of those proposals that concern third-party interventions,
referrals to the Grand Chamber, and the new so-called forum for dialogue.
Third-Party Interventions
One such practical suggestion
concerned third-party interventions from the states into cases pending before
the Court. This mechanism provides an effective means for interested states to
engage in a direct feedback loop with the Court prior to the delivery of its
judgment. In a separate paper, I examined states’
engagement with this procedural avenue and argued that such interventions are
frequently motivated by self-interest, in particular by a desire to influence
the Court’s approach to issues that may have implications for the intervening state
itself. The Court, in turn, appears well aware of these underlying motivations
and assesses such interventions accordingly.
Through the document the CDDH urges
the Court to ‘facilitate third-party interventions in appropriate cases’. It is
not immediately apparent what is meant by such ‘facilitation’. Interviews
conducted with government agents for the purposes of my research suggest that,
while communication between the Court and national authorities is not always
optimal and information about significant cases may occasionally reach agents
at a late stage, this is not the primary obstacle to more frequent third-party
interventions. Rather, there was broad agreement among interviewees that the
principal impediment lies in resource constraints at the national level. In
most states parties, responsibility for litigation before the Court is
discharged in-house by relatively small teams, which lack the capacity to
prepare third-party interventions in addition to their existing workload as
respondent states. The Chisinau declaration should perhaps encourage the member
states to resource their representatives before the ECtHR better and instruct
them to intervene in sensitive cases.
While third-party interventions by states
may be genuinely helpful in certain cases, they are not an unqualified good,
for at least two reasons. First, such interventions inevitably have the
potential to prolong proceedings, particularly where the Court decides to make
specific procedural arrangements to accommodate them. Given that the Court is
frequently criticised for the length of its proceedings, an increase in
multiple third-party interventions is unlikely to alleviate this concern. One
can however suggest that the Court will be able to absorb a relatively small
increase of such interventions in small number of high profile cases. Second,
third-party interventions carry an inherent risk of exerting pressure on the
Court. Although my research on third-party interventions in Grand Chamber cases
did not reveal any clear link between such interventions and more lenient
judicial outcomes, a systematic increase in the practice would make such
pressure more difficult for the Court to disregard. This concern is
particularly acute in light of the possibility that the forthcoming Chisinau
Declaration may encourage the Court to accord greater weight to such
interventions.
In sum, encouraging state
interventions is not a risk-free idea in the context of increased hostility
towards the Court especially in certain areas. While in some cases, third-party
interventions might enhance the decision-making process, and make the judgments
more holistic and well grounded; if overused they can mount unnecessary
pressure on the Court both in terms of resource implications and more
importantly political considerations.
Referrals to the Grand Chamber
Another suggestion advanced by the
CDDH concerns requests for referral to the Grand Chamber of the Court. One
procedural route by which a case may come before the Court’s most authoritative
formation, composed of seventeen judges, is through referral following the
delivery of a judgment by a Chamber of seven judges. In such circumstances, a
request for referral may be made by one or both of the parties to the
proceedings. The suggested wording is to ‘[r]eiterate the invitation to the
Court to adapt its procedures to make it possible for other States Parties to
indicate their support for the referral of a case to the Grand Chamber when
relevant, which may be useful to draw the attention of the Court to the
existence of a serious issue of general importance’. Perhaps in practice this
would mean that the Court will have to inform member states of all referrals
and ask if they would support any of them. I would expect these statements of
support to be reasoned and explain why a particular state would like to see the
case under consideration in the Grand Chamber. This proposal is akin to the
suggestions concerning third-party interventions discussed in the preceding
subsection, albeit focused on a more specific procedural issue.
It is essential that the Court
retains a high degree of discretion in managing its Grand Chamber docket.
Proceedings before the Grand Chamber are considerably more complex and
time-consuming than those before a Chamber, and the Court has the capacity to
hear no more than approximately 20–25 Grand Chamber cases per year. Reflecting
this structural constraint, the overall success rate of referral requests
remains very low, at around 5 per cent. Should the Court, under increased
pressure, begin to accept a greater number of referrals, there is a real risk
of generating a backlog of cases and further exacerbating the already lengthy
duration of proceedings.
Occasionally, some cases admitted
to the Grand Chamber appear rather unusual, and input from the member states
might be helpful; however, this could potentially come at a cost to the Court’s
legitimacy. The procedure of referrals is not
very transparent. The panel of five judges deciding on referrals normally
offers no reasons for their decision (Rule 73 of the Rules of Court). If many states
support a referral but the panel decides against it without giving any reasons,
this may not appear very dialogical. Furthermore, the Court’s procedure
requires at least the semblance of equality of arms: would such a proposal, for
example, provide an opportunity for NGOs or other stakeholders to comment on
the referrals? Again, taking into account the context of the formal session of
the Committee of Ministers in Chisinau, it is unlikely to be so.
My final point is that a Grand
Chamber judgment should emerge naturally from several feedback loops between
state reactions and Chamber judgments. A premature Grand Chamber judgment risks
entrenching a standard that may be difficult for the member states to accept
and even harder to amend within the Court’s internal architecture.
Forum for Dialogue Among Member States
For me the most unclear suggestion
in the draft document is related to the new forum of the member states on
migration. The document suggests that ‘the Council of Europe may provide a
forum for dialogue among member States to address the challenges relating to
migration, thereby contributing to the coherence, effectiveness and credibility
of the Convention system’. It is hardly a secret that the whole idea of the formal
session of the Committee of Ministers in Chisinau is to deal with migration but
how a forum can contribute to the effectiveness and most of all credibility of
the Convention system is not explained (yet).
There appears to be no apparent
added value in establishing this forum; it is unclear how it would be organised
or what impact it might have on ongoing case law or its implementation.
Considering the broader context in which this reform is taking place, the forum
risks appearing as a lobbying instrument aimed at limiting the Court’s
engagement with ‘migration issues’. Unless further details are provided
regarding its working methods, and, more importantly, its potential impact on
the ECtHR’s case law, its role and impact remain a matter of mistery.
Interim Conclusion
This section of the draft document concludes by encouraging the Court to maintain and strengthen ‘its dialogue, through its judgments and otherwise, with the highest national courts of the States Parties’. While this is a laudable objective, it is also necessary to recall that, pursuant to Article 46 of the Convention, the Court’s judgments are legally binding. Although the Court must retain a degree of flexibility and responsiveness, such adjustment should not become a one-way process.
