Copenhagen, February 16, 2018
During the Danish chairmanship it is an important priority of the government to ensure that the European human rights system, also in the future, is effective and relevant, maintaining its vital role in Europe (The Danish Government’s chairmanship programme: “Europe in a time of unrest and upheaval – strong values and a future-proof Council of Europe.” )
The Danish Helsinki Committee of Human Rights welcomes that the Danish chairmanship – like previous chairmanships of Switzerland, Turkey, United Kingdom and Belgium – takes advantage of its chairmanship of the Committee of Ministers to bring the question of the convention system forward in line with the December 2015 report from the Steering Committee for Human Rights (CDDH) “The longer-term future of the system of the European Convention on Human Rights”, endorsed by the Committee of Ministers in 2016.
The Danish Helsinki Committee of Human Rights thanks the Ministry of Justice for its openness towards and willingness to involve non-governmental organizations in consultative meetings.
Together, the European Convention of Human Rights (ECHR) and The European Court of Human Rights (ECtHR) are the European Convention system’s foundation, anchor and bulwark by promoting the fundamental freedoms, which all Council of Europe member States must respect. Hence, the European human rights system is an indispensable tool in international politics.
However, The Danish Helsinki Committee regrets to conclude that notwithstanding good proposals, a new idea and an underlining of the ECtHR’s role, the adoption of this much too long declaration – with a good many reiterations – would definitely tip the balance of power in favour of member States and to the detriment of the convention system and member States citizens. To achieve its stated goal cf. above 1, the draft therefore merits a complete revision.
1 The Court’s role is not subsidiary, but to ensure the observance of the engagements undertaken by member states, and when a complaint against a member state is admitted to examine the conformity of the national legislation and procedures in question with the ECHR and the case law of the Court. The current draft would seriously interfere with the hitherto accepted formal and real independence of the European Court of Human rights vis-à-vis the member states.
2 The text is much too negative, almost obstructive towards the Court. Many elements point to that the Court needs to be more efficient, more focused, concentrate more etc. The text gives the erroneous impression that the Court is not functioning well. The draft declaration’s strong emphasis of the ECtHR’s alleged subsidiary role in overseeing the application of the Convention is definitely not helpful.
3 The problems facing the Convention system are primarily caused by certain member states’ refusal or inability to abide by the Court’s rulings and judgments. If the aim is to remedy this situation, the causality analysis must be accurate. The distinction between the prerogatives exercised by member states and the independence of the Court should not be diluted. The ECtHR is not and must not become a battleground for member states’ national interests. To deal with the many problems currently facing the Convention system the Court is not in need of political admonitions about subsidiarity, but of adequate funding and clear political support for its mission from all member states.
4 References to the necessity of ensuring broad popular support for the Court’s judgments and decisions in order to safeguard the Convention system are essentially running counter to the purpose of any human rights system. Human rights will become meaningless, if they are only applicable to those individuals whom the majority of a society can sympathise with. Human rights law is part and parcel of an intricate system of checks and balances to protect the individual against illegitimate measures taken against it by a state; even if the policy resulting from these measures enjoys widespread popular and political support in the state in question. As Europe’s past has amply demonstrated, majorities and governments do not always make ethically or legally defensible choices. Finally, the wording implicates that that the support is doubtful. That is an undocumented assertion, and it needs thorough and country specific clarification.
5 The draft should be more forward-looking by focusing on new ideas. Previous declarations can be referred to in a concise manner avoiding repetition of already agreed positions. Specific national elements, such as the focus on migration (for instance para 25 and 26), should be avoided: If each delegation adds its own points of concern the declaration will be of no collective use.
6 The reference to constitutional traditions and specificities of states parties (for instance para 14 and 57) should be avoided: such wording is ambiguous and risks contravening the globally accepted position that human rights are universal.
7 The notion that if national authorities have dealt with a case in accordance with the formal criteria set out in the ECHR, the Court should refrain from examining any resulting complaint against the state in question (for instance para 24), is unacceptable. The notion seriously reduces the scope of the Court’s adjudication and effectively does away with the right of individual petition, which is one of the cornerstones of the European system. This notion also risks creating a bizarre system of double standards: Member states formally applying the criteria of the ECHR would escape the Court’s scrutiny, even if the application of the said criteria is erroneous or arbitrary in character. In this sense, the draft Declaration seemingly ignores the sad fact that in some member states the Court is still the only effective legal remedy left to individuals.
8 The notion that Member States should adopt texts expressing their discontent with a case-law development (for instance para 41) will neither support nor enhance the court’s authority. It will on the contrary undermine its authority. It contradicts the stated objective of the declaration.
9 Subsidiarity does not mean that the Court is a subordinate of the member states (for instance para 13 and the heading between para 21 and para 22). It entails that the Court is barred from examining an individual complaint as long as the competent authorities of the member state in question have not reached a final decision in the matter and can provide legal redress effectively. Subsidiarity therefore does not necessarily mean that the Court should do less; it means above all that member states should do more in respecting their international legal obligations and upholding the Convention.
10 The negative notion cf. 6. above applies also as regards the reference to The Vienna Convention on the Law of Treaties, whereby the text gives the impression that the Court ignores international law (for instance para 55, 56 and 57).
11 The text tends to be unduly normative towards the Court (for instance para 23). It is not for the Committee of Ministers to instruct the Court on how it should undertake its work. If this norm is advanced a Court is not required. It is correct that the wording of the draft in some cases ultimately stem from the Court’s own case law. However – and this is significant – the Court must itself decide what it should do or not; it is obviously not for the “defendants” (i.e. the member States) to instruct the Court.
12 It should be clarified what is meant by and the consequence of the draft declaration’s employment of the wording “States Parties”. This wording gives the impression that it is an authentic interpretation exercise about the ECHR. This is not the case. Instead of States Parties it should read “The participants in the Conference”. The Council of Europe has only had one conference of States Parties of the ECHR in the history of the Convention: in Madrid during the last Spanish Chairmanship November 2008 – May 2009, at which the aim was to obtain the entry into force of Protocol 14 (bis) despite Russia’s non-ratification.
13. The requirement for necessary dialogue between member states and the Court is repeatedly underlined in the draft. However, the most important tool of dialogue, i.e. the work carried out by Council of Europe’s intergovernmental committees and its subsidiary bodies is totally ignored. The Court and all Council of Europe monitoring bodies systematically refer to the outcome of the intergovernmental committees’ endeavours in the form of treaties, recommendations, guidelines, declarations, manuals etc. endorsed by The Committee of Ministers. Of 27 landmark judgments ruled by the Grand Chamber since 2008, 20 are based on standard setting instruments prepared by intergovernmental committees. Without the European Prison Rules, the Court and the CPT would have been left without any guidance as to what are the common standards accepted by all member states. Hence, the draft Declaration should clarify that dialogue is important and should take place through the established channels with due emphasis on the work of the relevant intergovernmental committees.