By Jonas Christoffersen
Let’s reform the European Court of Human Rights. Very few supporters of European human rights protection agree that we need to urgently reform the European Court. I am one of them. Unlike the very vast majority of human rights defenders, I fear that we will lose the hard earned political and public support behind human rights if we do not change the system.
The European Court of Human Rights has always balanced between law and politics. It has lived its life between faithful supports and cold critics. The supports have by far outnumbered the critics, but the 2012 Brighton Declaration is turning the tide. And rightly so in my mind.
Strasbourg-bashing is an old phenomenon, but the Brighton Declaration for the first time gathered a wide coalition of governments behind a true reform agenda seeking to change the power-balance between the Court and the States. The Court’s judgments are described as lacking in quality, coherence, consistency etc. The criticism is unfortunately well-founded and this is a dead serious problem.
The Contracting States have already prepared a 15th Additional Protocol to include in the preamble a totally superfluous reference to the principle of subsidiarity and the margin of appreciation and to expand the Court’s room to dismiss insignificant applications. The problem is not that the States adopt a silly reference to the margin of appreciation. The problem is that it is necessary.
Despite repeated political calls from the Council of Europe States, the Court has so far almost completely ignored its task of dismissing insignificant applications. The Court has fast-tracked a large number of significant applications, but the rest of the applications are sitting in piles without any real prospect of being handled within a foreseeable future.
The Court has done a great job in dismissing tens of thousands of ill-founded cases bringing the case-load down to some 110,000 cases. But the Court is to blame for its inaction in dealing with the core of the problem: too many cases fall within the scope of the Court’s current review. The Court has the instrument allowing it to control its docket in a much more strategic way, but the Court has failed to do so.
The Court apparently believes that it can solve the serious problem of a lack of human rights protection in Europe by keeping an open door to all applicants. The result is well-known: the case-load is strangling the Court, decreasing the quality of the judgments, and widely decreasing the legitimacy of the Court.
The Court identified the core of the problem more than ten years ago. The president in 2002, Luzius Wildhaber, said the following: “Is it not better for there to be far fewer judgments, but promptly delivered and extensively reasoned ones which establish the jurisprudential principles with a compelling clarity that will render them de facto binding erga omnes, while at the same time revealing the structural problems which undermine democracy and the rule of law in parts of Europe?”
Council of Europe governments seemed to agree and adopted Protocol No. 14 in 2004 giving the Court access to dismiss insignificant applications. In recent years, they have reminded the Court to use its new power and exploit the full potential of Protocol No. 14. This has not really worked and the governments have now pointed to a new future role for the Court: “…the Court should be in a position to focus its efforts on serious or widespread violations, systematic and structural problems, and important questions of interpretation and application of the Convention…”
Is anybody really against that? Well, this is only possible if a large proportion of applications are dismissed for no other reason than the limited institutional capacity of the Court. Yet, most parts of the “human rights environment” believe that the Court should keep its focus on the individual applicant and remain accessible to all individuals on an equal footing. Well, it might work in some WonderEurope, but it does not work any longer.
We need to take a step back and find a new way to effective human rights protection in Europe. The Court is in the process of breaking its neck trying to carry the burden of a hundred thousand individuals relying on the Court. It just cannot be done, and friends of the Court need to accept the cold reality of present day Europe. The Court can no longer continue down the same path.
Jonas Christoffersen is the director of Denmark’s National Human Rights Institution and the co-editor of The European Court of Human Rights between Law and Politics, published by Oxford University Press.
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