Tuesday, February 23, 2010

The Interlaken Declaration and the European Court of Human Rights

Last week saw the much anticipated Interlaken Conference on the Future of the European Court of Human Rights (conference website), intended to secure workable solutions for the future of the Court. The Court, which started as a part-time court working with a commission, is now full-time and has developed under the recently ratified Protocol No. 14 (which comes into force on 1 June 2010) in order to try to meet the very real challenges of resources and workloads. Those challenges, however, are not entirely resolved by Protocol No. 14 and further work is needed in order to try to ensure the stability and continuing operation of the Strasbourg Court as an important part of Europe’s human rights infrastructure. This raises questions as to what the role of the Court is: is it an adjudicative court that ought to focus mostly on resolving disputes and providing redress, or is it a constitutionalist court? Ought it to be both and, if so, is that a feasible objective? In this post I intend to outline some of the challenges faced by the Court, consider the extent to which this question as to role and function remains unresolved by Protocol No. 14, and consider how this debate might be relevant in the Interlaken process.
The European Court of Human Rights has four main formalised functions to hear inter-state complaints where they arise; to hear individual complaints where they arise and are deemed admissible; to provide Advisory Opinions when requested (Art.47, ECHR); to clarify interpretation of judgments and assess whether judgments are being abided by where requested by a super-majority of the Committee of Ministers (Art.46, ECHR). These are the formal functions of the court, however, and a mere recitation of them or even a detailed analysis of them does not answer the more fundamental question of what role the Court is intended to play.
It is commonly assumed that there is some tension between the Court’s roles as an adjudcative court in individual cases (albeit in a subsidiary manner as complainants must exhaust all domestic remedies first) and its role as a constitutionalist court for the Council of Europe. If the Court is primarily intended to carry out the former role then rules relating to admissibility, remedies, supervision of judgments etc… have an importance that must be jealously guarded. If, however, the Court also, or even primarily, has a constitutionalist role then what is important is not that every individual complainant would have her case heard and adjudicated upon, but rather that judgments of the court would outline and formalise (or ‘harden up’) the constitutionalist principles of the Convention. This kind of role does not require the Court to have particularly open admissibility rules or for every individual complainant to have satisfaction of some kind; rather it requires a more strategic kind of role in terms of case selection (not, one would think, entirely dissimilar to the certiorari decisions of the US Supreme Court)
While most superior courts in domestic jurisdictions carry out both of these kinds of roles without a great deal of difficulty, the European Court of Human Rights faces very particular challenges in doing so. First of all the Court was, until relatively recently, only part-time. Secondly, recent years have seen the expansion of the Council of Europe to more than 40 states from which complaints can flow. Thirdly, the Court was (and continues to be) under-resourced. Fourthly, the Court must deal with an enormous diversity of legal systems within its jurisdiction and to the extent possible master the relevant elements of domestic legal systems in order to effectively analyse the position of a complaint vis-à-vis the Convention. Fifthly, the Court has witnessed an enormous increase in complaints all of which have to be given at least an initial admissibility consideration even if the vast majority of them are never considered on their merits (for failure to be deemed admissible) leading to an essentially unmanageable workload. These five points (which might be boiled down to resources, scope and scale) are perhaps the main areas where the Court’s future—as either an adjudicative court or a constitutionalist court or both—looks vulnerable.
Protocol No. 14 represents an important, although on its own insufficient, attempt to tackle these difficulties. Protocol 14 introduces some important changes into the way in which the Court works especially in relation to admissibility decisions which can now be made by single-judge chambers with the assistance of a rapporteur. In addition, Protocol No. 14 provides that if a single-judge chamber finds that an application is ‘not inadmissible’, forward it to a committee of three judges. The committee of three judges may also make decisions as to admissibility. In addition, these three-judge committees may deliver a judgment in the case if it determines that it is one where the underlying question that arises is “already the subject of well-established case-law of the court” (Art.28, ECHR). The concept of ‘well-established case-law of the court’ is problematic, especially as the ECHR does not operate a system of stare decisis that we are used to in the common law world and may well result in less cases progressing ‘up’ to the seven-judge chambers or, indeed, the Grand Chamber where arguably the most constitutionalist decision making takes place. In addition, Protocol No. 14 introduced the principle that the Court can reject an application where “the applicant has not suffered a significant disadvantage” (Art. 35(3) ECHR).
In some important ways, then, Protocol No 14 attempts to deal with one of the most serious challenges facing the Court from a practical perspective, namely the sheer volume of complaints and the need for effective case management as between the different compositions of the Court. However, these mechanisms as introduced seem also to be focused on trying to maintain the dual functionality of the Court as adjudicative and constitutionalist. This is notwithstanding the concerns expressed by some commentators that the new admissibility requirement and the ‘well-established case-law of the court’ principle might undermine the capacity of the Court to carry out either or both of these functions well. In a new book coming out this summer entitled The European Convention on Human Rights Act: Operation, Impact and Analysis (Round Hall/Thomson Reuters, 2010, forthcoming) which I co-authored with Dr. Cliona Kelly of NUI Galway, we deal very briefly with these concerns (brief merely because the book’s focus is primarily domestic). We argue that in fact the changes introduced by Protocol No. 14 will allow for the continuing performance of both kinds of functions and, inasmuch as Protocol No. 14 increases the role of the Court in supervising judgments, it may “accelerate the hardening of norms within the Convention system and, combined with the now facilitated accession of the European Union to the Convention, greatly advance the process of regional constitutionalisation” (Chap.6).
However, there is genuine concern that the reform of the Court in order to secure its future will result in the sacrificing of one or another of those functions. This is well demonstrated by the following extract from a statement submitted from 156 different NGOs:

The European Court of Human Rights must be a strong Court, accessible to individuals claiming violations of their Convention rights when they have had no effective redress domestically. It should be a Court which will give a reasoned decision on whether a case is admissible, or a reasoned judgment on the merits of a case, without undue delay. The Court should be given the resources by states to function properly, and not at the expense of other Council of Europe human rights mechanisms.

This is no lean demand, and it is one that in my view clearly expresses a desire for the Court to continue to carry out both adjudicative and constitutionalist functions. It asks for the Court to be accessible to individuals who have no domestic redress and to give reasoned decisions without undue delay: an adjudicative and a constitutionalist demand. The submission goes on to call for the strengthening of national enforcement of the Convention. This would enhance the Convention’s constitutionalist character and relocate adjudicative functions under Convention principles to the domestic sphere in a manner that is entirely in-keeping with the subsidiary nature of the regional human rights regime and indeed with the idea of the Convention as a constitutionalising—or if one would prefer, harmonising or synergetic—document. The group of NGOs then goes on to make the following exact proposals:

Any reforms to the European Court of Human Rights should ensure that:
• the fundamental right of individual petition is preserved and not further curtailed;
• there is an efficient, fair, consistent, transparent and effective screening of applications received, to weed out the very high proportion (around 90 per cent) of applications that are inadmissible under the current criteria;
• judgments are given within a reasonable time, particularly in cases where time is of the essence, or that raise repetitive issues where the Court’s case law is clear and those that arise from systemic problems;
• the Court is given adequate financial and human resources, without adversely impacting the budgets of other Council of Europe human rights mechanisms and bodies;
• solutions to the problems faced by the Court, including the varied reasons for inadmissible applications, are devised on the basis of informed analysis, transparent evaluation of both the root of the problems and recent and future reforms.

Again, these more exact and specific requests display a desire for the Court to be both adjudicative and constitutionalist. The reality is that continuing with that duality of function is resource-heavy and it is right to argue that the Court must be fully resourced including by the continuing development of research units, rapporteurs, clerks etc… and the continuing cultivation of a body of expertise in Strasbourg both for the benefit of the Court and for the benefit of the legal systems to which people working in Strasbourg might subsequently return. However, no amount of resourcing will bring about the concrete enforcement of the Convention at domestic level and that is necessary for the Court and Convention to work. This is something that Interlaken can not secure; it must be brought about through domestic politico-legal action in every one of the member states (and some, inevitably, will need to do more than others). What is certain, however, is that Interlaken and the process that follows it must confront this question of role and function and, if the duality is to be maintained, must frame its proposals for the future of the Court with the demands of such duality fully in mind.
On Friday the Interlaken Declaration was issued. Although it contains a lot of material of interest (much of which is really about nuts-and-bolts resourcing of the Court), for the purposes of this post it is worth noting that individual petition is reaffirmed as a “cornerstone” of the Court and Convention. That notwithstanding, there is also a call for further ‘filtering’ to be introduced which suggests that the focus within the Court itself—and certainly within the larger compositions and the Grand Chamber—will be on cases that present opportunities for constitutionalist decision-making; a development that may not please those who believe in the importance of the Court’s adjudicative role if it results in the watering-down of the principle that all applications will be considered to at some degree.

(Cross-posted at Human Rights in Ireland)

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