The European Court of Human Rights’ View of the Draft Copenhagen Declaration

The draft Copenhagen Declaration has already triggered some debate at this blog. So far the tone has been highly critical. Donald and Leach denounce the Declaration as essentially a tool for institutionalizing undue political pressure on the European Court of Human Rights (ECtHR) that risks jeopardizing the Court – even European human rights at large. Geir and Føllesdal follow suit and declare that the Declaration‘s mantra of dialogue and shared responsibility is a thinly concealed attempt at weakening the court and empowering states.

The Court itself has now published its own Opinion on the draft Declaration and it has a strikingly different tenor than that of the cited academics. That difference, we will argue, is not simply the effect of different institutional roles, but also of a different appreciation of the problems facing the ECtHR in terms of case-load and the need for an enhanced and more structured dialogue between the major stakeholders in the system in order to safeguard the Court’s institutional authority.

In fact, the Court and its President, Guido Raimondi, have very openly recognized that the Court faces two fundamental challenges. In a speech in Nijmegen on 18 November, 2016, he noted that, first, ”the very high number of cases” was ”a cause of great concern to the Court”, but that it faced another fundamental challenge:

“The second challenge is of a different nature. It is essentially a political one. The challenge is to the very idea of the Convention system. It questions the authority, and even the legitimacy of the European Court of Human Rights.”

The draft Copenhagen Declaration is an attempt at addressing precisely these two fundamental challenges: caseload and authority.

So what does the ECtHR state about the draft Declaration in its opinion? Generally the Court welcomes a whole set of initiatives presented in the draft Declaration, notably on interpretation and increased participation in proceedings (paras. 27-28), selection and election of judges (29-31) and execution of judgments (32-34), noting however with regard to the latter, that it would appreciate a stronger wording. The Court is perhaps particularly welcoming towards the draft Declaration sections on the caseload problems facing the court. We cite here paras. 20, 22 and 24-26 of the Court’s opinion, which refer to paras. 43-54 of the draft Copenhagen Declaration:

“20.  The Court appreciates in particular the explicit acceptance and encouragement of the use of summary procedures to deal with straightforward applications. It welcomes the clear support that is given to the strategies applied so as to focus resources on the cases of most importance and those with the most impact, and to increase the institution’s capacity to process and decide applications.

22. The Court also appreciates the text’s general encouragement to explore all avenues to bring down the caseload. Building on the measures referred to in the previous paragraph, it will continue to seek ways to work more efficiently, and counts on the active co-operation of all its interlocutors.

24.  The Court is prepared to examine the suggestion made in paragraph 50 concerning repetitive applications in the context of non-executed pilot judgments.

25.  Regarding paragraph 54(a), the Court is receptive to the idea of consultation by the Committee of Ministers on the subject of increased use of friendly settlements and unilateral declarations as an avenue to reduce the backlog of cases.

26.  Concerning paragraph 54(b), raising ideas relating to inter-State disputes and individual applications arising out of situations of State conflict, the Court considers it important to acknowledge in the declaration the challenges posed to the Convention system by such situations in Europe. While noting the mention in the draft of “separate mechanisms” for dealing with such cases, the Court considers that clarification of this idea is required before it can be analysed.”

As it appears, there is a general alignment between the Declaration and the Court’s own plans in this regard. The Court’s comment in para. 26, calling for more preliminary work, should be emphasized. The blog statement by Donald and Leach, and the corresponding opinion in the joint statement by a series of NGOs, with respect to the same paragraph of the draft Declaration is in our view downplaying or even disregarding the real issue here — namely, disagreggating the backlog of cases to identify areas where additional reforms are most likely to achieve concrete benefits. For example, the ECtHR’s docket contains many unreasonably old cases stemming from inter-state conflicts. At no point does the Declaration suggest that such cases will be scrapped – as insinuated by Donald and Leach – but rather it calls for rethinking how justice can better be served in those difficult circumstances. The preliminary work has not yet been done, but it is necessary, nonetheless, to put the question on the agenda and begin serious thinking of how these applications can be handled in order to provide justice to victims who have been waiting for review of their complaints for years.

Another particularly contentious point in the current debate over European human rights is subsidiarity, which for better or worse has become linked to questions related to the authority of the Court. Although subsidiarity is implicit in the institutional set-up of the Convention system, there has been increased demand for subsidiarity since the Brighton Declaration. This has materialized in several judgments from the Court. The Court’s case law on the matter dates back to the late 1960s but it took a significant turn towards subsidiarity around 2003 which has continued ever since. We also find new approaches to judicial review being promoted in the writings of individual judges.

The draft Declaration can be said to attempt to codify some of these developments, which the Court itself notes (para. 13 and 14). But contrary to the accounts published on this blog, the Court does not see a sharp contrast between the concepts of effectiveness and shared responsibility. Instead, it repeatedly emphasizes instead that shared responsibility and subsidiarity are linked – fundamentally – to effective implementation of the Convention (para. 13 and 14). This is in our view unsurprising; indeed, it would be surprising if the Declaration were somehow attempting to deviate from this basic idea. But the on-going negotiations should make sure that this correlation is hammered out in the final text as it is apparently not widely appreciated.

The most controversial issue, if assessed by the writings on this blog, is linked to dialogue and increased participation of member states. We agree with the critics that there is too much emphasis on the member states in the Declaration and this has to be balanced with the role of other parties. If the goal is to secure the wider authority of the Court, it is fundamental that all the Court’s constituencies have opportunities for input and consultation, including NGOs, civil society groups, and National Human Rights Institutions.

The Court’s comments in this regard are limited to dialogue related to court proceedings broadly speaking. It welcomes general dialogue between courts, increased participation in cases, including better coordination among member states, third parties, etc. (paras. 15-17). But it refrains from commenting on suggestions made for more political dialogue on European human rights, as it consider these questions outside its institutional scope (para. 18). It does however emphasize that such debate should respect the independence of the court (para 18) and the binding character of the Court’s judgments. The Declaration seems in line with this (Declaration para. 41).

We know from participating in some of the high-level seminars held in preparation of the Declaration that the suggestion for increased political dialogue originates in an attempt at opening other channels for communications in addition to litigation before the Court. It further stems from observations made by academics that international courts need to be continuously re-legitimated – particularly an issue for long-existing international courts such as the ECtHR. The fundamental question raised by the Declaration is how such communication is operationalized. In a classic democratic system, dialogue and debate would naturally take place in the Parliament, which in the Strasbourg scenario would imply the Parliamentary Assembly. There is seemingly not support for that solution. An alternative is to host meetings at the Committee of Ministers, but that adds yet another role to Committee, and one that sits oddly with its existing role in terms of execution of judgments. The Declaration therefore suggests a third way (para. 42), namely a series of special seminars held annually and sponsored by the Danish Chairmanship.

It is of course difficult to object to the general idea of political debate, including about human rights. Without question, the dialogue sketched in the draft Declaration should fully respect the Court’s independence and authority. We therefore strongly suggest that the language in para. 42 that refers only to State Parties needs to be broadened and include other relevant stakeholders as mentioned above.

In sum, the draft Copenhagen Declaration addresses important and fundamental issues for the long-term functioning of the ECtHR. We do however agree with our colleagues that the wording is at times inaccurate and even counterproductive to the broader aims: there is, for example, no argument for singling out immigrants and asylum seekers other than satisfying Danish domestic politics; the reference to “constitutional traditions” and “national circumstances” in the context of subsidiarity seems unnecessary and potentially risky; we also would like to see some more “balances” to the many proposed “checks” on the Court; and, in this context, a clear restatement of the Court’s fundamental independence and final call on when subsidiarity is warranted.

Our bet is, however, that all of this is very likely to be repaired in the now on-going negotiations. The risk is, therefore, that we lose sight of the fundamental and important objectives of the Declaration, and the real underlying problems it addresses, by focusing only on these matters. This also seems to have been the approach taken by the Court in its Opinion.