Reflections on The Brighton Declaration

23 April 2012

Reform of the European Court of Human Rights has been a key objective of the UK government during its presidency of the Council of Europe. Its proposals have received a lot of media attention, fueled by the frustration of the government and others about some of the Court’s more controversial decisions. However, reform has been on the agenda for some time now, due in particular to the need to address the large backlog of pending cases. A number of measures were put into place following the Interlaken Declaration of 2010, including the use of single judges to determine admissibility in straightforward cases and a pilot judgment system for structural or systemic violations which generate large numbers of applications. Some progress has been achieved,as the Council recognised at its Izmir Conference in 2011. However, as last week’™s Brighton Declaration makes clear, more still needs to be done.

It was widely reported earlier this year that the UK would seek agreement on the introduction of additional admissibility criteria in a bid to reduce the number of applications to the Court. Those proposals, which raised concerns amongst members of the Court, including its British President, Sir Nicholas Bratza, have not found their way into the Brighton Declaration. However, innovations are proposed. Firstly, the time limit for applications is to be reduced from six months to four months. Secondly, Article 35(3)(b) of the Convention is to be amended. Currently, an application will be declared inadmissible if the complainant has not suffered any significant disadvantage, provided that respect for human rights under the Convention does not require examination of the case and that the case has already been considered by a domestic tribunal. The Brighton Declaration remove the need for prior consideration by a domestic tribunal, so that such applications may only be considered if respect for human rights requires it.

The Declaration also emphasises that an application should be regarded as “˜manifestly ill-founded”, and therefore inadmissible, if the complaint has been considered by a domestic court applying Convention rights, unless it raises a serious question regarding the interpretation or application of the Convention. This final point nods to the concerns expressed by the UK government about the need to safeguard the principle of subsidiarity and the margin of appreciation which is afforded to states in the application of the Convention. The fact that no new admissibility criterion has been introduced suggests that the Council considers the existing criteria to be sufficient to uphold these principles. However, the Declaration provides that “for reasons of transparency and accessibility” ™the Preamble to the Convention should be amended to include explicit reference to both.

Whether the inclusion of references to these principles in the Preamble will make any practical difference to the Court’s approach remains to be seen. The principle of subsidiarity is embedded in the Convention already, since applications are inadmissible unless domestic remedies have first been exhausted. Cursory searches in the Court’s database of cases show the extent to which both subsidiarity and the margin of appreciation underpin the Court’™s jurisprudence. During the Brighton Conference Sir Nicholas Bratza expressed concerns about any attempt to legislate for these principles, which are tools of interpretation developed by the Court itself. He also emphasised the need for the Court to remain independent, indicating that the Court was uncomfortable about the idea of governments attempting to dictate how it should carry out its judicial functions. This concern has been echoed by Amnesty International.

It is worth noting that effective domestic implementation of the Convention and of the Court’s judgments is key to alleviation of the Court’s workload, much of which consists of “repeat”™ applications and applications against a small number of states. The Declaration emphasises the importance of implementation at national level but, as Amnesty has pointed out, it contains no new measures such as sanctions for non compliance to address this crucial issue.

One further area of interest is the proposal for an optional protocol to enable the Court to issue advisory opinions on specific cases. A draft text is to be produced for consideration by the end of 2013.

Kate Stone is a human rights barrister at Garden Court North Chambers. She is currently studying for a Masters in International Human Rights Law at the University of Oxford.

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