Letter to Jack Straw on the proposed reform of the ECHR
A letter written to Jack Straw submitted by a group of NGOs including Amnesty International, the AIRE Centre, Interights, Liberty and EHRAC in response to the proposed reforms of the Court. The NGO group has been closely involved in the ‘civil society’ response to the proposed reforms of the Court, both within the UK and at the Council of Europe, including attending meetings of the Steering Committee for Human Rights, the committee of Government experts tasked with putting forward proposals for reform.
The Right Honourable Jack Straw MP
Foreign Secretary
Foreign and Commonwealth Office
London SW1A 2AH
25 February 2004
Dear Mr Straw,
European Convention on Human Rights — Proposed Reforms
We are following up on your correspondence and meetings with the AIRE Centre, Amnesty International, the British Institute of Human Rights, Liberty and other organisations regarding the reform of the European Court and Convention on Human Rights.I refer in particular to your meeting with Liberty and others on 26 June 2002 and your subsequent letter to my predecessor John Wadham on 17 October 2002.We welcome the fact that the Foreign and Commonwealth Office will be holding a meeting on these proposals on 1 March 2004 and hope that all interested NGOs will be invited to attend, particularly those who are signatories to this letter.
In collaboration, we have been monitoring the discussions on reform of the Court within the Committee of Ministers and its Steering Committee for Human Rights (CDDH).Amnesty International has been attending meetings of the CDDH as an Observer.In addition, some of the undersigned organisations attended consultations which have taken place at the Council of Europe, including the NGO consultation meeting on 17-18 February 2003, a seminar for judges on 9-10 September 2002 and the Finnish Symposium on 17 November 2003. Some of the undersigned organisations will be attending the next Council of Europe consultation meeting on 25 February 2004. We are also very concerned that these potentially significant reforms, which are being discussed within the Council of Europe, are little known, discussed or understood at a Parliamentary level or within civil society generally.Attached for your information is the most recent document produced by Amnesty International commenting on the CDDH’s Interim Activity Report on Guaranteeing the Long Term Effectiveness of the European Court of Human Rights (“IAR”). The undersigned share the comments and concerns expressed by Amnesty International in its report.
We have also been monitoring the UK Government’s views on the proposals.In particular, we note the recent question asked in the House of Commons on this matter and your colleague Dr Denis MacShane’s reply.[1]The undersigned organisations agree with Dr MacShane that reforms to the European Court of Human Rights are indeed required to ensure its long-term effectiveness, in view of the increasing numbers of applications being submitted to the Court and the current problems that the Court is experiencing in dealing with applications within a reasonable time. However, we disagree with him that the proposed new admissibility criteria will remedy these problems, bearing in mind that approximately 95% of current applications are already declared inadmissible.
As you will know, the CDDH will draft a Final Report in April 2004 for consideration by the Committee of Ministers at their meeting in May 2004, where it is intended that an amended Protocol 14 will be adopted.We note that agreement has been reached within the CDDH on the procedures for friendly settlements, the terms of office of Judges of the Court, an expedited procedure for handling manifestly well-founded cases and the procedure for ratification of Protocol 14.We broadly agree with these proposals and therefore do not intend to comment on them further.
Our position on the reforms on which agreement has not yet been reached can be summarised as follows:
1.Proposed Draft Recommendations to Strengthen Convention Implementation at National Level
We welcome the proposals of the CDDH that aim at preventing violations at the national level and improving domestic remedies[2]. Better implementation of the Convention in member states including ensuring effective and accessible redress mechanisms at domestic level should reduce the number of people who need to seek redress before the Court and thus reduce the Court’s workload.
2.Proposed Amending Protocol 14
a.Amendment of the admissibility criteria (Article 35)
As a matter of principle, we oppose any change to the admissibility criteria.We do not believe that amending the criteria in Article 35 will deal with the two main problems identified above.Our concerns are shared by at least eleven of the Judges of the Court, including the UK Judge Sir Nicolas Bratza (the fourth most senior Judge on the Court)[3], members of the Registry and some Governments.
We believe that the introduction of new admissibility criteria will curtail the right of individual petition by granting the Court the power to decline to examine the merits of cases which it would have to examine under the current admissibility criteria.The right of individual petition, or as Sir Nicolas Bratza terms it “the philosophy of individual justice”[4] lies at the heart of the Council of Europe system for the protection of human rights, and to curtail this right would mark a radical departure from the principles on which the system is built. The aim of these reforms is to ease the existing pressure on the Court and to reduce the current backlog of applications to it. However, any proposals seeking to amend the admissibility criteria in such a way will require more detailed examination of cases at an earlier stage. This will result in a more cumbersome process, increasing the existing backlog rather than easing it.
Four proposals for reform of the admissibility criteria had been put forward at the date of the drafting of the IAR[5].Since then the Court has also made its own proposal for a rewording of Article 35.[6]In our view, all of these five proposals will restrict the right of individual petition and exacerbate rather than ameliorate the problems that the Court faces.We are concerned that the lack of clarity of the test (particularly the term “respect for human rights”) and the wide margin of discretion which would be given to Judges making decisions under this criteria would lead to a lack of coherence and consistency in the Court’s decision making on admissibility, particularly if coupled with the proposal for final inadmissibility decisions to be made by a single judge (see “filtering” below).
We therefore strongly urge the UK Government to reconsider its position and oppose any amendment of Article 35.
b.Filtering
We believe that filtering out the more than 90% of applications that are received by the Court that are inadmissible under current admissibility criteria is the major challenge faced by the Court.Our position of principle, as outlined in our Joint NGO Response to Proposals to Ensure the Long-Term Effectiveness of the European Court of Human Rights, is that no decision on admissibility and/or merits of an application should be made by less than three judges.We believe that this is vital in order to ensure consistency in the Court’s decisions and credibility in member states. In addition, to our knowledge the CDDH has not received or requested information to demonstrate that reducing these decisions to a single Judge would increase the productivity of the Court generally.If the Committee of Ministers were to accept the proposal to amend the ECHR to empower a single judge to make decisions on inadmissibility, we particularly disagree with the Court’s proposal that the delimitation of the single Judge’s competence should be left to the Court.[7]
We continue to urge member states to agree to increase the financial and human resources of the Registry.The Registry should be strengthened by increasing its budget and ensuring that additional lawyers, paralegals and secretaries are hired.The CDDH endorsed this recommendation in April 2003[8] and the Court has stated in its Position Paper of 12 September 2003 that it is “firmly of the view that whatever other measures are implemented, the Registry will have to be strengthened”[9].In its recent report (para. 18), the CDDH notes that the budgetary aspects of the filtering mechanism need to be looked into, but provides no suggestions.
We would be interested to hear the Government’s view on the filtering proposals.
We urge the Government to support the following two proposals.
Proposals by the Commissioner for Human Rights
3.We support the Commissioner’s proposals to be able to bring cases before the Court and to be empowered to intervene as a third party, and welcome the fact that the CDDH agreed to discuss these further. We also note that the Parliamentary Assembly of the Council of Europe (PACE) has recommended the Committee of Ministers to support these proposals.[10] If implemented, it is vital that the Commissioner’s Office’s financial and human resources be strengthened to support its new powers and responsibilities.We also believe that there is a key role for the Commissioner in assisting States with the implementation of the judgments of the Court, particularly when the violations identified by the Court require structural or legislative changes.This could result in a reduction in the number of applications brought to the Court raising the same or similar issues.
Infringement Proceedings
4.We support the proposal to amend the Convention to empower the Committee of Ministers to bring proceedings before the Grand Chamber of the Court when it considers that the State, in violation of Article 46 of the Convention, has persistently failed to execute a final judgment of the Court to which it is a party.
We would also like to receive further clarification and information from the Government on the following proposals:
5.On the proposed amendment to Article 28 of the Convention aimed at introducing an expedited procedure for “manifestly well founded cases”, we are concerned by the provision that would allow the three-judge Committee discretion to substitute a judge elected on behalf of the state party that is the subject of the petition, “including whether that State has contested the application of this procedure”. We are not clear why this wording, which may raise serious issues about the appearance of independence of the Court, is needed. This in light of the fact that the particular expertise about the laws and legal system of the state which is the subject of the application would not be necessary in such cases, as this procedure would only be applied to those applications which raise issues about which the case law of the Court is already clear.
6.We welcome the CDDH’s agreement to discuss further the procedure relating to the appointment of ad hoc judges, in light of some concerns that the current procedure of nomination of ad hoc judges raise in terms of appearance of independence. However, we are unaware of any proposals currently under discussion and would welcome more information about this.
7.We note that the Court has reiterated[11] its view that a pilot-judgment procedure is necessary to deal with repetitive cases. We would welcome some clarification of the status of discussion on this procedure.
We look forward to your views on the above and to further discussing these important issues at the meeting on 1st March 2004.
Yours sincerely,
Shami Chakrabarti
Director, Liberty
For and on behalf of:
Nuala Mole, Director, AIRE Centre
Kate Allen, Director, Amnesty International UK
Sarah Cooke, Director, British Institute of Human Rights
Philip Leach, Director, European Human Rights Advocacy Centre
Leanne MacMillan, Executive Director, INTERIGHTS
Roger Smith, Director, Justice
Kerim Yildiz, Executive Director, Kurdish Human Rights Project
Mel James, International Policy Executive (Human Rights), Law Society
Cc:Dr Denis MacShane MP
[1] Dated asked - 13 November 2003
Mr Mike Hancock:To ask the Secretary of State for Foreign and Commonwealth Affairs, if he will make it his policy (a) to oppose the introduction of new admissibility criteria for individual petitioners to the European Court of Human Rights and (b) to urge all member states to consult on the matter with (i) the legal community and (ii) civil society; and if he will make a statement.
Date answered - 19 November 2003
Dr Denis MacShane:The Government supports the introduction of the new admissibility criteria for individual petitioners to the European Court of Human Rights.The new admissibility criteria are not designed to restrict the right of individual application.But if the Court is not given discretion to apply the new criteria, that right could be put at risk by the ever-increasing volume of applications which prevents the Court from dealing with any applications in a reasonable time.
The Government endorses paragraph 14 of the Council of Europe’s Committee of Ministers’ Declaration of 15 May, which encourages the governments of member states to share information on this matter with civil society.Civil society representatives and independent experts will have the opportunity to raise questions at a Symposium at the Council of Europe on 17 November, with a further symposium proposed for early 2004.”
[2] These proposals are set out in Part A of the CCDH (2003) 006 Final and referred to in IAR paras. 6-9 a[and draft Recommendations set out in appendices I-III of this document].
[3] Bratza, No., The Future of the European Court of Human Rights — Storm Clouds and Silver Linings (Sir Thomas More Lecture at Lincoln’s Inn, 17 October 2002).
[4] Bratza, N., The Strasbourg Court — Present Reflections, Future Visions (Lincoln’s Inn Lectures).
[5] As outlined in Interim Activity Report, CDDH(2003)026 Addendum 1 Final, at page 10 and Interim Activity Report, CM(2003) 165 Addendum 1 at pp.11-14.
[6] See Response of the ECHR to the CDDH Interim Activity Report prepared following the 46th pPlenary Administrative Session on 2 fFebruary 2004 (CDDH-GDR(2004)001), para. 21.The Court proposes that the amended Article 35 would read as follows:
“The Court shall declare inadmissible any individual application submitted under Article 34 where it considers that the application is incompatible with the provisions of the Convention or the Protocols thereto, or that respect for human rights as defined in the Convention and the Protocols thereto does not require the examination of the application, or that the application is manifestly ill-founded or an abuse of the right of application.” (amendments marked in bold).
[7] See Response of the ECHR to the CDDH Interim Activity Report prepared following the 46th Plenary Administrative Session on 2 February 2004 (CDDH-GDR(2004)001), para. 16.
[8] See, CDDH(2003)006 Final of 4 April 2003, at p. 15.
[9] See CDDH-GDR(2003)024 at para. 3(m).This view is reaffirmed in its Response of 2 February 2004.
[10] See PACE Recommendation 1640 (2004), paragraph 7)
[11] See Response of the European Court to the CDDH Interim Activity Report, paragraph 37
