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Conference report

High-Level Expert Conference

2019 and Beyond:

Taking Stock and Moving Forward from

the Interlaken Process

Wednesday 22 to Friday 24 November 2017

Kokkedal Castle, Denmark

ERD, Alm.del - 2017-18 - Bilag 4: Henvendelse fra justitsministeren med materiale fra den Internationale ekspert konference om reform af det europæiske menneskerettighedssystem mv.

Conference report

2019 and Beyond: Taking Stock and Moving Forward from

the Interlaken Process

Wednesday 22 to Friday 24 November 2017, Kokkedal Castle, Denmark

Introduction

The aim of the Expert Conference was to explore how the promotion and protection

of human rights under the Convention system can be developed and improved in both

the short-term and long-term. Following the main tracks laid out in the Interlaken

Process, the Conference addressed both the question of how to ensure a more

sustainable functioning of the Convention system and ways of strengthening the

authority of the system.

At the Conference, representatives of Council of Europe Member States met with

representatives of the European Court of Human Rights (the Court), including the

President and the Registrar, officials of the Council of Europe, national

parliamentarians and judges, as well as leading legal experts from academia and civil

society, to address both the immediate problems facing the Convention system and

develop ideas for the long-term future.

Main issues discussed at the Conference include:



To what extent have the objectives set forth in the Interlaken Process been

accomplished?

What measures are needed in order to reach our common vision of a Court

that can focus its efforts on serious or widespread violations, systemic and

structural problems, and important questions of interpretation and application

of the Convention?

How can we work to ensure strong and long-term support and ownership of

the Convention system at a time when populations and decision-makers in a

number of countries are increasingly questioning the authority of the

Convention system?

Should new avenues be explored in order to meet the challenges that the

Convention system is likely to face in the future?

Context

The current Interlaken reform process, including the results of the High Level

Conferences in Interlaken (2010), Izmir (2011), Brighton (2012) and Brussels (2015),

has brought notable progress, inter alia through strengthening subsidiarity, improving

the efficiency of the Court and addressing the need for more effective implementation.

The Convention system, however, continues to face considerable challenges. The

caseload remains a serious problem. The same applies to the failure to implement

judgments, many of which deal with systemic and structural problems in the Member

States. At the same time, the authority of the Court is being challenged from different

perspectives.

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The member states have agreed that by the end of 2019, the Committee of Ministers

should decide on whether the measures already adopted within the existing reform

agenda have proven to be sufficient to assure sustainable functioning of the control

mechanism of the Convention or whether more profound changes are necessary.

Approaching this deadline, the Danish Chairmanship wishes to ensure that the

measures already adopted are effectively implemented, including through the

entering into force of Protocol 15, and initiate a renewed discussion on the future of

the Convention system looking beyond the 2019 deadline.

A specific priority for the Danish Chairmanship is to discuss the need for an enhanced

dialogue between the member states and the Court on their respective roles and on

the development of the Convention system. National Human Rights Institutions and

civil society should also be included in this dialogue.

Based on the Expert Conference, and subsequent dialogue with stakeholders, the

Danish Chairmanship will hold a meeting of ministers in Denmark in April 2018 hosted

by the Danish Minister of Justice. The purpose will be to adopt a political declaration

that takes stock of the current reform process, proposes new measures to strengthen

the Convention system, and provides guidance for further reform work.

The Conference Report

This report provides summaries of the speeches and discussions at the Kokkedal

Conference. It has been elaborated by the organisers in consultation with the

speakers. The report reflects the organisers understanding of the views expressed

during discussions, which took place under the Chatham House Rules. Any mistakes,

remain the responsibility of the authors.

Keynote speeches



Opening speech by

Søren Pape Poulsen, the Danish Minister of Justice

(abstract):

Denmark is a strong supporter of the European Human Rights System and we have

placed continued reform of the Convention system at the center of our Chairmanship

to ensure that the Convention system remains relevant and effective in the future.

Although the Interlaken Process has brought real progress the Convention system

continues to face considerable challenges in regard to the caseload, the failure to

implement judgments, many of which deal with serious systemic and structural

problems, and to the authority of the Court

–

even in countries with strong support for

human rights.

During the Interlaken Process, great emphasis has been put on the principle of

subsidiarity. And for good reason. The shared responsibility between member states

and the Court is vital if we are to future-proof the Convention system. It is key to fulfil

the common vision of a more focused, effective and balanced system. It would be

practically impossible for 47 judges to handle appeals from more than 800 million

people and more importantly, this is not the idea of the Convention system. Member

states are the primary providers and guarantors of the Convention rights and in doing

so they enjoy a margin of appreciation. Subject, of course, to the supervision of the

Strasbourg system.

There are two sides of the coin of subsidiarity. Subsidiarity affects not only the way in

which the Court should conduct its review, leaving more room to national courts and

parliaments. It also affects the way in which states are expected to honour their

obligations. Only states who take human rights seriously can expect deference. The

two sides of subsidiarity has been a recurring theme throughout the Interlaken

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Process. It should also be so during the Kokkedal Conference. There is a need to

discuss both the responsibility of member states and the role of the Court.

There is a third element too, which we maybe sometimes overlook. A system of

shared responsibility can only work if there is an ongoing effective dialogue between

the Court and the member states on their respective roles and on the development of

the Convention. Criticism of the Convention system in countries like Denmark to a

large degree stem from feelings of detachment from the Convention system:

Populations and decision-makers feel they are not being involved and listened to.

National politicians sometimes feel like bystanders to a system that was created by

member states. Some of this criticism may be unfair but there is a point too. Through

its judgments, the Court today has influence on policy areas of great importance to

member states and to our populations. It has impact on our legal systems, on our

societies, and on our lives. The Court generally does a good job. Yet, one cannot

ignore the fact that sometimes when applying or interpreting the Convention, the Court

may get it wrong. The Court is not a perfect, flawless institution and it would be

unrealistic to expect that. It may fail to understand the full consequences of its

decisions and it may miss important and valid arguments. This should not come as a

surprise, nor be controversial, because the Court is dealing with hard cases, involving

difficult dilemmas and a delicate balancing of rights and interests.

There is a fundamental need for an ongoing constructive dialogue between the Court

and member states, including civil society, on how the Convention should be

developed. No one has an interest in a Convention system that is perceived as

‘out

of sync’ by member states and the broad public. Least of all the Court itself. Ensuring

such dialogue is a shared responsibility too. We as member states must also look

inwards. If we want the Court to listen more to us, we must also communicate more

clearly with the Court and not just voice our concerns in local parliaments and the

press. Enhanced dialogue must respect the Court’s role and independence and take

place through appropriate and well-functioning channels. The key value of the

Strasbourg system lies in having an independent Court, whose authority is

uncompromised, and whose decisions we accept as legally binding. Changing this is

not up for discussion. We need to find ways to communicate better within the current

framework.

The question is how to do this in the best possible way? This is something that has

been discussed for some time in Denmark, in a debate involving both politicians,

judges and experts, such as the Danish Institute of Human Rights and iCourts of the

University of Copenhagen who both take part in the Conference. We hope the

discussions here in Kokkedal will take us further on this important issue.

Our ambition is to adopt a political declaration that takes stock of the current reform

process, proposes new measures to strengthen the Convention system and provides

guidance for further reform work. The goal is to ensure a strong and effective

European human rights system for future generations. With broad support and

ownership. Europe deserves and needs that.



Keynote speech by

Guido Raimondi, President of The European Court of

Human Rights

(abstract):

The Interlaken process has fundamentally been constructive. Opening up a wide-

ranging and long-lasting discussion on the protection of human rights carries with it

“a risk of retrenchment”. The process did not go that way. Instead, it was characterised

by the express commitment of States to work towards a system that is stronger

overall, which the speech of the Danish Minister of Justice confirmed.

Constructive does not mean

“uncritical”. On the contrary, all stakeholders have to

direct their critical faculties to the Convention system, to its international components,

and to the whole national dimension as well. The engagement needs to be a critical

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one, the analysis thorough and rigorous, and the discussion a frank one. That is how

progress is made.

The Interlaken process has been characterised by a spirit of inventiveness. The

process of reform must have a practical, problem-solving side that needs to go hand

in hand with more conceptual discussions of legal principles and the reckoning with

political realities. We need to be problem-solvers too, making good use of the tools

available and crafting new ones too.

The full effects of the reform outcomes of the Interlaken process, e.g. Protocols No.

15 and 16 will only be seen and felt in the longer-term, at some point beyond 2020.

There have been other tangible and inventive outcomes as well. The Advisory Panel

of Experts on Candidates for Election as Judge to the Court (the Panel) is an example.

The Panel has been at work since 2011, and has been of great value in relation to the

quality of judges. Enhancing the role and the positive influence of the Panel is an idea

that finds much support among States. The role of the Panel in the institutional

landscape of the Convention should be consolidated. There is also reason to praise

the remarkable success of the single judge formation, which has proved to be a sort

of rescue from a caseload that had reached dire proportions. The Superior Courts

Network is another result. And it goes in the same direction as the guiding spirit of the

Interlaken process towards increased subsidiarity.

Subsidiarity is the quintessence of the Interlaken process. Its essential meaning is

given at the outset of the Interlaken Declaration: A shared responsibility between the

States Parties and the Court to fully secure Convention rights and freedoms. As the

Danish Minister said, subsidiarity is a two-sided coin. One side for the national level,

and one for the international level.

Subsidiarity has been increasingly influential in the Convention case-law in recent

years. A widely-read

article of Judge Spano has described this as an “Age of

subsidiarity”. And indeed, the notion has come to a new prominence in the Court’s

reasoning. At a more general level, what has been seen in recent years is subsidiarity

functioning as an organising principle for the European human rights system.

The reality of the system is that it is made up of States with varying qualities of

domestic safeguards, and varying degrees of compliance with international human

rights law. Subsidiarity is noticed more when the Court responds to States with a high

level of human rights protection. When it is shown that the law-making process in a

country involves due consideration of the impact of new legislation on Convention

rights, as part of the democratic debate in Parliament. And when the domestic courts

decide human rights cases on the basis of the principles and the methods well-

established

in the Court’s case-law.

That integrating trend is present in many

Convention States. And, thanks to the national dimension of the Interlaken process,

it should continue to develop. That is the other side of the coin.

The reform process has fundamentally been constructive because its key notion,

subsidiarity, denotes a consolidation of human rights, not a concession. It does not

impose deference, but fosters the conditions that reduce the need for corrective action

from the European level.

The

Danish Minister’s comment that national politicians can feel relegated to the role

of bystanders in the Convention system is a point one cannot overlook. The

deepening of understanding among all actors of the concept of subsidiarity is the best

answer to that.

One of the most salient features of the Interlaken process has been an intensification

of the dialogue with national courts. In this, the Court has acted according to the letter

and spirit of the Brussels Declaration, and this degree of engagement will be

maintained.

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There is indeed a case for more, and more effective, dialogue being at the same time

mindful that such interaction has to take place within certain limits. Such concerns

need not arise regarding the possible development of third party intervention, a

familiar feature of proceedings in our Court. A broader legal debate should, in

principle, be a better legal debate, which is desirable.

The development in the caseload of the Court has recently been out of the ordinary.

From 80,000 cases in January, to 93,000 cases in June, to 84,000 cases in

September, and dropping by another 20,000 cases since then. These unusual

fluctuations are due to developments regarding Turkey and Ukraine, and again they

reflect the Court’s understanding that widespread

and structural situations have to be

resolved at the national level. In a word, this is subsidiarity in operation.

From Turkey, the Court received 32,000 applications deriving from the measures

taken after the attempted coup last year. Most of these were declared inadmissible

for non-exhaustion of the relevant domestic remedies, the key component of

subsidiarity. However, the potential for a massive influx of cases later on is there. As

for Ukraine, the Burmych case struck out more than 12,000 applications, the Court

deciding that these are to be dealt with in the framework of the general measures of

execution of the Ivanov pilot judgment.

The recent monthly figures showed a total of 64,000 applications pending which is the

lowest number in 10 years. There are about 5.500 cases before a single judge. They

will be decided within a short timeframe. The next group is 15,000 simple repetitive

cases, for which the Court now has efficient working methods in place. Next come the

high priority cases, currently numbering 24,000. Of these, there are some 17,000

cases about prison conditions, largely concerning Hungary and Romania. For both

these countries, the pilot judgment procedure is currently operating, and remedial

measures are in hand at the domestic level. The aim, of course, is to reach a situation

permitting the repatriation of most of these applications. This means that the core

challenge of the Court’s backlog lies in the seven or eight thousand priority cases that

are not due to systemic or structural problems, and the approximately 20,000 standard

cases now pending at Chamber level.

The objective is to press ahead towards a situation in which the Court can devote

sufficient time and resources to the most important cases, and to deliver those

judgments that will have the most far-reaching impact. At the same time, the backlog

needs to be treated. The

Court’s intention is to maximise

exploitation of the procedural

tools that Protocol No. 14 provided.



Speech by

Frank Schürmann, Swiss Government Agent

(summary):

In his speech, Frank Schürmann looked back to the year 2009, when the idea of a

High Level Conference in Switzerland took concrete shape. Originally, the idea had

been to hold a colloquium bringing together the key players of the Convention system,

but then President Costa made a strong plea to the Swiss Government for a ‘Grande

Conférence politique’. This was at a time when 120.000 applications were pending

and 10 years after the Rome Conference. There was a strong feeling that

“something

has to be done”, and that “it is now or never”.

Reflecting on the Interlaken Process Schürmann noted that of the three key players

involved in the reform process (Member States, the Court and the Committee of

Ministers), it may be argued that the Court has made the most significant efforts.

Unfortunately, at the level of the Member States, subsidiarity does not always work,

as it should. In the Interlaken Declaration, already, focus had been on national

implementation and ensuring the effective execution of judgments. The overall result

after 7 years was quite sobering, which shows the limits of what the Committee of

Ministers can do today, if a Member State does not abide by its commitments. When

discussing “more profound changes” maybe focus should be

on this point, although

inherently difficult.

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Schürmann noted that the Court still has to deal with too many cases. This was in

spite of Protocol No. 14 and the impressing output of the single judge formation. There

is also a challenge in assuring the coherence of the case law, especially when it

comes to the application of open concepts, laid down in the Convention itself such as

“necessary in a democratic society”, or concepts developed in the case law, such as

positive obligations.

Criticism directed at the Court is according to Schürmann still a reality and it does not

only come from politicians who do not like foreign judges. We need to take that

seriously. In 2014, the Swiss Government had presented a stock taking report to

Parliament, 40 years after ratification of the Convention. The report was a clear

commitment to the Convention, but also highlighted challenges. Two aspects were

highlighted: The ‘fourth instance’/subsidiarity and dynamic interpretation. These

aspects also formed an important part of the Interlaken and subsequent Declarations,

especially the Brighton Declaration. In regard to subsidiarity and fourth instance the

discussions since Interlaken have left traces in the case law, e.g. in S.A.S v. France,

Lautsi v. Italy and Ndidi v. the United Kingdom. The question is what exact criteria

must be met on the domestic level for this approach to be applied, and how to assure

its coherent application.

Regarding dynamic interpretation, Schürmann pointed out that two understandings of

the concept needed to be distinguished from each other. In the first, the Court, when

interpreting the Convention as a living instrument, has to find answers to new

challenges

–

e.g. in the field of bioethics or IT. The second concerned ordinary

litigation of civil, criminal or administrative nature, not containing new challenges, as

such, but being examined by the Court in the light of human rights standards. It is this

second kind of dynamic interpretation that most often received criticism. An example

are social rights. The positive obligations deduced from Article 8, could potentially

lead to a little “Social Charter”. In light of the very high number of cases still coming

to the Court, many of them raising serious human rights issues, it would, according to

Schürmann, be wiser to consolidate the case law rather than to develop it further.

Schürmann finally noted that the Court already has done a lot in order to improve the

management of cases. The potential for further optimisation, although the Court has

proven to be quite inventive, would sooner or later be exhausted. Many of the

improvements within the Court have gone hand in hand with a de facto weakening of

the right of individual application. This right to individual complaint is considered to be

the cornerstone of the system. In reality, the cornerstone is already perforated today.

Some even speak of a fiction. Accepting this reality is the prerequisite for truly

“thinking out of the box”.



Keynote speech by

Başak Çalı, Professor of International Law, Hertie

School of Governance

(summary):

The focus of Başak Çalı was on four important themes in the Interlaken process. Two

of these were ongoing concerns, which still needed continued attention, and the other

two were new concerns.

The first theme was the non-implementation of judgments, which was a long-standing

and ongoing concern within the Convention system and is intrinsically linked to the

Court’s rising case law of repetitive cases.

A specific point of concern related to the

“implementation crisis” is the fact that the number of states

who are outright ignoring

or arguing that they do not need to comply with all judgments of the Court, have

considerably increased over the years.

A second theme is the need for collective and strong signals in support of the

European human rights system and the authority of the Court. This was needed in

2010, and it is still needed today for the system to work for everyone. It is necessary

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to explicitly promote the message that the system is for everyone, because this is

fundamentally what has made the Convention system a success for so long.

The third theme was to develop a better understanding of the subsidiarity principle.

The Court has responded to attitudinal changes towards the Convention system both

through formal channels of communication with its political masters, as well as in

writing and speeches by its individual judges. It has, however, also gone beyond these

communicative gestures and shown increased willingness to respond to the attitudinal

shifts in its national audience through its substantive case law, departing from what

may be termed as its “standard jurisprudence”. As Professor Mikael Rask Madsen’s

research has shown, the principle of subsidiarity is widely incorporated into the

Court’s

case law. New procedural review standards have been developed that allow the Court

to defer to national authorities due to the quality of decision-making at the national

level. However, there is still a lack of a full and thorough understanding of whether the

application of the principle is being done adequately. There is a need to move away

from supporting subsidiarity as beneficial in and of itself, and rather to begin to

consider when it is adequate and when it is not, and furthermore how the Court can

apply the principle in a coherent way with the rest of the Convention principles.

The fourth and last focus theme related to bad faith attitudes towards the Convention,

which was something quite new. There was a need to pay systematic and close

attention to those countries who seek to undermine the Convention system or restrict

rights for ulterior motives. In this context, it has been interesting to see the emerging

novel bad faith jurisprudence under Article 18 of the Convention through which the

Court is able to identify not only that a Convention right was violated, but also that it

was violated in bad faith.



Keynote speech by

Mikael Rask Madsen, Director of iCourts, University

of Copenhagen

(abstract):

The 2012 Brighton Declaration sets out a series of objectives with regard to

rebalancing European human rights. Most notably it increases subsidiarity in the

system, as well as it advises that the court should be more focused and centre its

activities on the most serious cases and thereby delivering fewer judgments.

Has the Court become more focused in terms of having reduced the backlog of

pending cases following Brighton? Immediately following Brighton yes, but by 2016

the number of cases reached 80.000 and went above 93.000 in June 2017. The recent

Burmych case helped reduce the number of pending cases below 60.000 cases.

Furthermore, the return of a significant number of Turkish cases, arising from the

failed July Coup, to exhaust local remedies also reduced the number of pending

cases. What is more, both of these recent developments reflect new approaches to

subsidiarity.

Using a “throughput” indicator (defined as the number of

applications judged +

dismissed cases + cases struck off the list divided with the input, defined as the

number of new cases allocated to a judicial formation), simple mathematics suggests

that the throughput should be higher than 100 pct. if the case backlog is to be reduced,

meanwhile the system is taking care of new cases. That has only occurred in recent

times

–

in the aftermath of the Brighton Declaration, yet the rate then dropped to 72

pct. In 2016, the court once again was accumulating a backlog of cases. Until the

Burmych case and the return of the Turkish cases, the number of backlog cases were

worrying. Prospectively, if the current backlog is some 65.000 cases and these should

be reduced within a reasonable period, e.g. 3 years, the throughput should be roughly

130 pct.

The difficulty predicting the development of pending cases pertains to striking

fluctuations in the number of pending cases following instability in a number of

member states. Currently cases are particularly emanating primarily from the conflicts

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in Eastern Ukraine, Ossetia, Karabakh, and Turkey resulting in both sudden peaks in

the pending cases

–

and eventually backlog as it can take a long time to finalize those

cases. The fact that the Court’s main access point is individual complaints makes it in

practice very difficult to create broader solutions in these regards. It is, therefore,

relevant to consider other ways of dealing with conflict cases than what is currently

the appraoch.

A way of measuring the Court’s capacity – its ’horsepower’ –

is by assessing its

average output over time in terms of the number of applications judged + dismissed

cases + cases struck off the list. Using this measure, the average capacity before

Brighton was 28.746 applications; the average capacity after Brighton was 70.645

applications. The court has in other words increased its capacity dramatically since

Brighton primarily through the following actions: The dismissal of a significant number

of cases in the immediate period following Brighton, the Burmych approach, and

stricter admissibility criteria. Yet, in the years when those approaches were not used,

the capacity was lower (2015-16). One should keep in mind that the option of striking

off the list a massive number of cases à la Burmych might have been used up, leaving

the court with a significant amount of cases in the lower priority categories, notably

Cat. IV cases. Creating new capacity in those regards requires coming up with new

ways of establishing for instance “leading cases”. Or, alternatively, focusing on

settling cases with member states.

How long do applications have to wait for being solved? There are currently many

backlog cases dating back quite some years. A few countries stand out, having an

average age of cases of more than 4 years. Other cases, many from the conflict over

Ossetia, go back 8 years. Only few countries have many old cases, and the bulk of

all old cases derive from those countries. If the Court is to reduce this backlog of

seriously old cases, meanwhile performing its job with regard to new cases, it needs

significant capacity. Of the total of cases older than 3 years, that is a total of some

11.165 cases, 8.624 are category IV cases

–

that is 77 pct. And 1.844 cases are Cat

III - 16.5 pct. How can this backlog be cleared? The clear starting point is that

Category IV cases have to be dealt with individually, unless they are re-classified as

priority V, following a new leading judgment or pilot judgment. Or a negotiated solution

can be found and they will be struck off the list.

Another way the case-situation has changed in recent years is by the development of

a new subsidiarity doctrine. According to statistics, the use of margin of appreciation

remains roughly the same in absolute numbers. Yet in relative terms, it is steadily

increasing, particularly in two areas of law. First with regard to Art. 8 there is a

significant increase in the evocation of margin of appreciation. Second, the

development is linked to the emergence of a new standard for the exhaustion of

domestic remedies. We are starting to see a new more stringent standard that

emphasises the responsibility of the claimant to argue the case in such terms that the

domestic judge has had a real chance to consider the Convention issues arising from

it. To exhaust domestic remedies in the new landscape of subsidiarity, the claimant

and the judge need to conduct a more thorough examination of the relevant

Convention case law.



Keynote speech by

Jonas Christoffersen, Director of the Danish Institute

of Human Rights

(abstract):

Democratic debate on human rights is necessary. The domestic debate varies

significantly from country to country, and from time to time. The Brighton Declaration

welcomed and encouraged open dialogues, and the key question is how to improve

the dialogue.

A European dialogue on human rights makes sense only if the European Court of

Human Rights is willing and able to engage. The Court has always engaged in

dialogue as reflected in the doctrine of direct (Wemhoff) and subsidiary review

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(Belgian Linguistic case). The Court refined its subsidiary review around 2003 and

today the most important question revolves around the complex interaction between

normative standard, domestic procedures and democratic legitimation.

Integrated review of procedure and substance revolves around the two limbs of

subsidiarity: it encourages states to implement the Convention just as it encourages

the Court to exercise a measure of restraint. The integrated review of procedure and

substance can be seen in many areas of case-law. The development is reflected in

the Court’s view, that if domestic courts exercised a careful balancing act, then strong,

serious reasons are required to depart (von Hannover/Ndidi). The role of the domestic

policy-maker should be given special weight in matters of general policy

(Hatton/Maurice/Draon/Animal Defenders/SAS). The Court has attached special

weight to the absence of a good judicial and/or political process (Hirst).

The Court’s

review is not purely procedural, and the Court has been consistent in upholding a

substantive caveat (e.g. Bosphorus).

The Court is still required to develop and refine international standards, but new ways

should be found by the Court to be more tactical and diplomatic, since the Court’s

authority is being challenged when it changes and develops case-law. If new

standards are developed by a chamber, it allows for a measure of debate before the

development is accepted or rejected by a Grand Chamber (Hatton/Lautsi/Al-

Khawaja). If this is not possible, other tools should be explored to ensure sufficient

involvement and democratic debate. Otherwise, the risk of losing democratic support

may be too high. New standards could also be developed incrementally e.g. by

adopting a general interpretation and indicate to the responding state that the area

should be kept under review (Zdanoka).



Keynote speech by

Ingo Venzke, Director, Amsterdam Center for

International Law, University of Amsterdam

(abstract):

The public authority of international courts such as the European Court of Human

Rights requires democratic justification, which in turn draws attention to modes of

participation in the Court’s practice. Just like the Convention is a dynamic, living

instrument, the Court’s democratic justification

must likewise be dynamic and cannot

be confined to a few points in time.

Democratic constitutional states remain the primary locus for democratic decision-

making and for the justification of international public authority, such as that exercised

by the Court. With regard to the Court, strands of democratic legitimacy that connect

to member states run via (1) the fact that states ratified the Convention and

subsequent Protocols; (2) their consent to the jurisdiction of the Court and its

procedure; (3) the role they play in the nomination and election of judges. Convention

states thus contribute to justifying the Court (ad 3) personally, (ad 2) institutionally and

(ad 1) substantively.

But these strands of democratic legitimacy do not settle questions about the

democratic justification of the Court’s public authority. The justification that flows from

states’ acts of ratification is curtailed by the fact that the Convention evolves in the

practice of the Court. Large parts of the debates about the Court’s

legitimacy at

present are precisely about the supposed gap between states’ one-time

ratification

and later developments in the law that seem to be largely withdrawn from their reach.

Increased possibilities of participation and politicisation are therefore needed to

complement the judicial development of the Convention.

A procedural approach to the margin of appreciation would essentially probe the

democratic quality of domestic decision-making and adjust the margin of appreciation

accordingly. Plus, the stronger the European consensus on a certain issue, the

stronger would be the burden on domestic democratic processes to possibly stem

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themselves against that consensus. These are ways of strengthening the Court’s

interaction with domestic political processes.

Neither other member states nor a general public are however part of that interaction.

As a ‘constitutional instrument of European public order’, the Convention belongs to

a broader community of which the Court is the judicial organ. In addition to domestic

political processes in any single member state, the Convention’s interpretation and

application therefore needs to be embedded within international, European political

processes.

Publicness and transparency are the primary conditions for any strategy of increased

participation or politicisation.

The Court’s procedure and practice already cater to such

demands. But the additional potential may be considered of presenting draft judicial

decisions for comments in order to counter surprise and to point to consequences that

judges would not otherwise have anticipated.

Through third party interventions and amicus curiae, the Court’s statute permits ‘every

person concerned’ not only to participate in oral hearings, but – with the President’s

permission

–

also to submit written comments. In comparison with other international

courts, the Court does exceptionally well in summarising those comments and in

engaging with them in its decisions. It is noteworthy, however, that states rarely

intervene in proceedings. This reluctance also contrasts with the practice in other fora,

such as the World Trade Organization (WTO) where the EU and the US intervene in

almost every single case in full recognition of the law-making dimension of

international adjudication. NGOs intervene more often before the Court; and they also

have the potential to introduce the voice of the general public. That could also be the

role of the Commissioner for Human Rights. The long-standing proposal of

introducing a General Advocate could be reassessed in this context.

Several dimensions of a judicial remedy contribute to the democratic justification of a

court’s public authority: It ties judges closer to the law that they are bound to apply; it

corrects wrong decisions; and it can promote the consistency of adjudication, which

in turn severs the goal of equality. With a view to increased participation and

politicisation, the existence of a legal remedy allows for responsiveness, and it

provides a focal point for third states and for a critical public.

In relation to the political embedding of judicial practice, it is noteworthy that neither

the Committee of Ministers, nor the Parliamentary Assembly, nor any other body,

provides a forum for the discussion of developments in the Court’s jurisprudence.

It is

clear that the Committee’s task of supervising the execution of the Court’s final

judgment is precisely a matter of implementation and not of discussing the judgments

as such. By comparison, the WTO Dispute Settlement Body (DSB) regularly

discusses the reports of the panel and Appellate Body. Adjudicators in the WTO then

can (and do) react to those discussions. If there were a European forum for the

discussion of the Court’s case law –

for discussing how the norms of the Convention

should be interpreted

–

it would provide a repository of reasons on which judges would

be free to draw, without putting into doubt judges’ independence or their monopoly

over the final decision. Such a forum would also provide the possibility of norm-

contestation that could work against the contestation of the Convention, the Court, or

the System per se.

A dynamic, living Convention at the heart of the Court’s practice requires a dynamic,

democratic justification of the Court’s authority. Emphasis should thus be placed

the interaction between the Court and political processes at the domestic level and

–

even more so

– at the European level. The Court’s judicial practice

should be

embedded within political processes.

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

Keynote speech by

Robert Spano, Judge and President of Section,

European Court of Human Rights

(abstract):

The intervention was based on two inter-related claims. Firstly, that the Court for the

better part of its history to date has been engaged in ‘embedding’ Convention

principles into national systems.

Secondly, that this ’embedding phase’ has now, in

general, shifted towards a new historical phase in which the Court has begun to

realign its project away from its decades-long embedding work towards the domestic

enforcement of already settled principles and the domestic empowerment of

Convention stakeholders at national level, the ‘procedural enforcement phase’.

This two-dimensional historical trajectory is both descriptively correct and normatively

justified; first, as a matter of empirical fact, the rendition of Convention history did in

fact take place, and, secondly, and more importantly, this trajectory is to be lauded

from a normative point of principle for the future of the Convention system, its

sustained legitimacy and continued effectiveness.

The embedding of Convention principles by the Court has been a functional process

aimed at progressively creating the necessary foundations for the realisation of the

Convention´s overarching institutional structure manifested in the principle of

subsidiarity, so as to trigger the full engagement of the member states with their

obligations under Article 1 of the Convention as the primary guarantors of human

rights and freedoms. The concept of ´embeddedness´ used here is therefore not a

description of the end result of this process, i.e. the actual and full domestication of

Convention principles, but rather a term used to describe the function or purpose of

the process itself as it has developed historically in the last forty years or so.

The perceived legitimacy problem of the Convention system comprises two

components.

The first component postulates that the embedding phase, although necessary for the

creation of the edifice of human rights forming the basis of the Convention system,

has been, as some have argued, an inherently top-down, juridical project. The

argument suggests that placing an international court at the vanguard of formulating

and giving life to legal norms impacting the day to day life of democratic societies

across Europe may

have given rise to a ‘crisis of legalism’. Convention rights have

thus, as the argument proceeds, been developed through language formulated by

international jurists and judges and above national democratic political life as

constituting pre-political or supra-political legal norms in the sense of being created in

isolation from the political community to which they belong.

The second component is grounded in the doctrine of original expectations of the

member states. The argument goes that the Court’s interpretations have lost their

rational connection to the expected original meaning held by the ratifying States,

perceived as a sovereignty or a separation of powers problem. This component also

manifests itself in the rejection of the idea that whilst it is accepted that the Court has

an important role in giving life to the rights protected by the Convention, it is not its

role to apply strict scrutiny to the domestic assessment of the necessity of their

restriction. In other words, it is claimed that at the stage of balancing individual rights

and the public interest and employing the principle of proportionality, the legal aspect

of the assessment has in the strict sense ceased, and solely political and policy factors

come into play, in the adjudication of which the Court is not in a more knowledgeable

position than the domestic decision-maker.

There is a need for some conceptual clarifications when accounting for the procedural

enforcement phase. In contrast to the Court engaging in strategically attempting to

embed Convention principles domestically, and thus invariably having to strictly

review domestic decision-making and to substitute its judgment for the national

authorities, the current era, the procedural enforcement phase, manifests itself in the

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Court taking a more framework oriented or abstract role when reviewing domestic

decision-making. This may be termed process-based review.

There seems to be empirical grounding for the conclusion that such development has

in fact taken place, although the complex case-law of an international court like the

Court can never maintain a fully linear trajectory. More importantly the development

may also seem as normatively justified on both institutional and substantive grounds.

Regarding the latter claim, one can take the view that criticism of the Convention

system is a natural consequence of an international system for the collective

enforcement of human rights, and that the Court and the Convention system should

not be concerned by, nor react to, such criticism. That is not the right approach to

take. Every international system of law, as a system that by definition is not embedded

politically and historically in a national constitutional framework, is from time to time

confronted with the threat of losing its effectiveness at national level if a critical mass

of distrust and a perceived lack of legitimacy pervades its work. The historical

trajectory of the Convention system has, by its very nature and current status, thus

called for a shift of focus to secure the increased effectiveness of human rights

protections at national level, by moving from the embedding of Convention principles

towards a bottom-up strategy empowering national rights-holders and decision-

makers to take the lead in enforcing and guaranteeing human rights.

There are three main elements of process-based review within the procedural

enforcement, one might argue, that the Court is currently deploying to effectuate an

approach allowing for increased domestic empowerment of Convention rights:

Exhaustion of domestic remedies: Firstly, at the technical level, the Court has in recent

years developed its exhaustion of domestic remedies jurisprudence under Article 35

of the Convention, in particular with its Grand Chamber judgment in

Vučković and

Others v. Serbia which, while confirming already settled principles, may be interpreted

as requiring applicants to be more diligent in raising their Convention complaints for

domestic remedies to be properly exhausted than transpired from previous case-law.

Criteria-based Guidance for Convention Based Assessment at Domestic Level: The

second element of the procedural enforcement phase manifests itself in important

case-law, in particular Grand Chamber judgments, increasingly being formulated in

terms of providing, in the general principles part, objective interpretational criteria that

can guide national decision-makers in their application of the Convention at ground

level.

Qualitative Democracy-Enhancing Approach to Legislative Deference: The third

element of the Court’s procedural enforcement phase is its refusal to draw any

distinction of principle between the subsidiarity-based deference that may be afforded

to national authorities of a judicial or executive nature on the one hand, or, on the

other, domestic parliaments producing legislative norms that are facially challenged

before the Court.

Under process-based review, the Court may grant deference if national decision-

makers apply the general principles, are structurally capable of fulfilling that task and

respect the rule of law. Will the future of process-based review in Strasbourg inevitably

lead to double standards of human rights protections within the Council of Europe?

That of course depends on what is meant by ‘double standards’. The Convention’s

general principles apply equally in all member states and the Court’s

process-based

supervision of their domestic enforcement is, at the level of principle, the same for

each State.

In conclusion, there are clear signs that the historical trajectory of the Convention

system, from the embedding phase to the current procedural enforcement phase, is

an empirical reality, but more importantly a development that is normatively justified

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on both institutional and substantive grounds. It will sustain and support in the long

run the system’s overall legitimacy for the peoples of Europe

and, hopefully, at the

same time result in the progressive decrease in the number of applications to the

Court. This should lead to a commensurate enhancement of Convention protections

at national level, at least in those member states that take their obligations seriously

and apply the general principles set out by the Court in good faith.

Breakout Sessions



Dealing with systemic and structural problems

–

the case of prison

conditions

The breakout session discussed the question of how the Convention system can

become more effective in dealing with systemic and structural human rights problems

in member states. The need to ensure implementation of general measures that solve

structural problems has been a key issue throughout the Interlaken Process. In the

Brighton Declaration the member states agreed that future reforms must enhance the

ability of the Convention system to address serious violations promptly and effectively,

focusing efforts on serious or widespread violations, and systemic and structural

problems. Using the case of prisons conditions, it was discussed how we more

effectively may solve structural and systemic problems identified by the Court e.g.

through pilot judgements. A number of questions were raised in the session including

whether there is a need to increase the Council of Europe’s capacity in the field of co-

operation and assistance to member states? And/or whether we need to take a stricter

approach to member states that fail to implement judgments that have identified

systemic and structural problems? Different national approaches and practices were

discussed. It was then discussed how dialogue and co-operation programmes

between Governments and the Council of Europe institutions could help design the

right process. Some participants shared member state experiences of good

cooperation and dialogue with the Committee of Ministers and the execution

department. It was the overall understanding among the participants that the pilot

judgment procedure generally works well and that deadlines in the process help

motivating the national authorities to execute the judgments speedily. It was pointed

out by some participants that when judgments are not executed at the national level

this is only rarely because of a lack of political will but rather a question of prioritisation.

The problem is quite often the incapacity to put in motion a domestic political process

which would secure participation of all national actors with a view to resolving a

structural deficiency. Yet another judgment or interim resolution is not enough to

achieve this goal. The general view was that there was no need for a new special

track within the Court for cases concerning systemic and structural problems.

However, it could be necessary for all involved actors, including the Court, to be

inventive in order to induce domestic decision-makers to pursue appropriate policies.

The Council of Europe cooperation projects aiming at a permanent dialogue with the

national authorities concerned need to be further exploited to that effect. This was

raised to point to the fact that lack of knowledge of the Convention system, at the

national level, remains a real problem in many countries, in particular among domestic

judges. National Parliaments may also not be aware of which measures are the

appropriate ones for solving systemic and structural problems. Better training and

translation of judgments could therefore beneficially be prioritised.



Pilot judgments and the Burmych case

–

a new institutional balance?

The breakout session dealt with the recent case of Burmych and Others v. Ukraine

where the Court referred specifically to the Interlaken, Izmir, Brighton and Brussels

Conferences. With the judgment the Court has devised a new approach, in line with

the principle of subsidiarity, for dealing with repetitive cases, stemming from non-

execution of a pilot judgment. One of the questions raised was what the potential of

this approach is? Could it be a

solution for solving the Court’s backlog? Other

questions concerned the implications of this approach both for the Committee of

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Ministers and other stakeholders, notably the applicants? The general view of the

participants was that pilot judgments are a good and necessary tool for the Court and

member states alike. Some participants had, however, been genuinely surprised by

the Court’s new approach in dealing with non-execution

of pilot judgments and felt

that it would have been useful with a preceding dialogue between the Court and the

Committee of Ministers. Some expressed concern about the situation of the individual

applicant after Burmych, but there was also a broad acknowledgement of the

challenges faced by the Court when a pilot judgment is not implemented and repetitive

cases keeps pulling heavily on the Court’s resources. There was a clear sense that

the discussions about the implications and handling of the Burmych judgment was

just starting and would continue in the coming period, with many questions remaining

unanswered.



Admissibility on the road to Protocol 15

The breakout session concentrated on the fact that the Court is, and for a long time

has been, overwhelmed by the ever-increasing amount of applications. In the

Interlaken Process it has continuously been stressed that the Court should apply the

admissibility criteria strictly and consistently in order to ensure balancing of the

number of pending cases with the Court’s actual capacity

also in order to maintain

confidence in the rigour of the Convention system. It was discussed whether the Court

is living up to this requirement or if more could and should be done? The implications

of Protocol 15 entering into force was also debated. How is it ensured that the new

and tightened admissibility criteria regarding ‘significant disadvantage’ have the

intended effect? And would new approaches to admissibility be necessary in the

future? Participants noted that one of the aspects the Court had recently started to

focus on was exhaustion of domestic remedies. An example of this was the many

post-coup cases that had been returned to Turkey. Participants also noted that the

Court had begun to apply more strictly the approach that if an applicant had not raised

a certain Convention point during the domestic proceedings, the applicant would be

prevented from doing so in Strasbourg. This too was seen as an important and

necessary development. Another trend detected by participants was that the Court

generally seemed more inclined to reject cases where the applicant has failed to give

sufficient reasons for his complaint. This too was seen as important. Previously, the

Court had generally seemed more willing to interpret a given complaint in a way that

made it fit within the provisions of the Convention. As an interesting example of the

Courts recent application of the “significant disadvantage” criteria

the case of Anthony

France and Others v. the United Kingdom was mentioned during the discussions. It

was generally agreed that Protocol No. 15 would be a further and important step in

the direction of reducing the Court’s workload. Hopes for a speedy ratification from

the last few countries were therefore expressed.



The art of the possible: Setting ambitious, yet realistic goals for the

future

The breakout discussion focused on the actual capacity of the Court. There was a

broad acknowledgement that the new data presented at the Conference was of great

interest. A key question is how many cases a Court with 47 judges can realistically

deal with each year. In relation to this, it was discussed if further optimising and

rationalising is at all possible within the current set-up without jeopardizing the judicial

quality of the Court’s work. A question was posed

whether it is for example acceptable

that victims of human rights violations may have to wait 5 or even 10 years for their

case to be decided? And if there is a limit as to how brief the reasoning of judicial

decisions can be in order to be meaningful? The participants found the figures

presented by Professor Mikael Rask Madsen estimating that the Court can deliver

judgments in approximately 2,000 substantive (Chamber and Grand Chamber) cases

each year very interesting. There are fundamentally two ways to bring down the

Court’s workload: either by adjusting the

input or the output of cases. It was generally

felt that more focus should be put on the input side of the equation. A number of

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different measures were discussed to lower the input/number of incoming cases from

the Court, or to solve them by other means than through judgments, including

mediation at the national level and negotiated solutions with the Court. Regarding the

output, an increased use of technological developments to find patterns and improve

processes was mentioned as potentially worth exploring by some participants. A point

was made that even though 5 or 10 years was objectively a very long time to wait for

a judgment, the value for the applicant of receiving the judgment could be very

important regardless of the time passed. This was just one of the issues that made it

difficult to establish the right indicators for measuring the Courts performance. It was

felt that more work and analysis was needed on this topic.



Selection and election of judges

The breakout session dealt with the question of selection and election of judges to the

Court. The quality of judges appointed to the Court has been emphasised on many

occasions, including in the Declarations adopted in Interlaken, Izmir, Brighton and

Brussels, as well as in the CDDH follow-up report on the longer-term future of the

Convention system. On the basis of recent discussions on the election and selection

of judges at four meetings in the DH-SYSC-I working group and the decision of the

Parliamentary Assembly to re-examine

the Assembly’s rules on election of judges

with a view to re-stating and updating them the breakout discussions focused on how

to further improve the selection and election process. It was pointed out that one of

the fundamental problems underlying all other issues on selection and election is that

member states have not agreed among themselves what kind of qualities they are

looking for in a judge. The participants generally felt that such a clarification was

desirable. In this conjunction the point was raised if the criteria for holding office in

Article 21 of the Convention requiring that judges must possess the qualifications

required for appointment to high judicial office or jurisconsults of recognised

competence should be amended to say “highest” judicial office and that proficiency in

international law should be a Convention requirement. To improve the procedure in

the short term it was generally the view that member states should be more aware of

the criteria used by the Advisory Panel of Experts on Candidates for Election as Judge

to the Court and that Member States should not bypass the Panel when presenting

the list of candidates. Furthermore interaction and cooperation between the Panel and

the Parliamentary Assembly should be strengthened to better ensure the expert input

from the Panel in the political process. This could be done in several ways, including

by participation of representatives from the Panel at the hearing of the candidates in

the Committee on Selection of Judges to the Court and by giving Panel

representatives the possibility to explain the Panel’s views on the candidates to the

Committee.



The need for a clear and commonly accepted framework

–

dynamic

interpretation and its limits

The breakout session focused

on the Court’s dynamic interpretation and possible

improvements and developments in this regard. The premise for the discussion was

that the Court’s judgments should guarantee effective protection of human rights and

that this may require a certain flexibility

such as the “present-day conditions”-

approach when interpreting the Convention. As basis for the discussion, the attention

was directed to the rules of interpretation in Articles 31-33 of the Vienna Convention

on the Law of Treaties

that governs the Court’s interpretation of the Convention and

may hold an important potential for legitimation of

the Court’s decisions. From a more

general perspective, the suggested basis for the discussion was, that the Court’s

interpretation should not stray away from the general principles of treaty

interpretation, and that, from a more practical perspective, the

Court’s dynamic

interpretation should proceed in a careful and balanced manner that ensures the

appropriate and measured development of international human rights standards. A

number of participants highlighted the need for dynamic interpretation, for example

when new technologies emerge and when moral standards change. Other

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participants gave examples of situations where the Court had stretched the limits of

interpretation and made remarks on whether social rights and positive obligations

should be interpreted into the Convention or if the extraterritorial application of the

Convention had gone too far. The participants generally asked for a clear reasoning

from the Court when dynamic interpretation is being applied. The participants also

expressed an interest in having

the concept of “European consensus” clarified by the

Court, including what it precisely means and how it is applied so as to secure to every

possible extent the acceptance of the judgment at the national level. Participants also

raised as a general point that the Court should find ways to inform member states

before it made changes in interpretation since this could allow member states to

engage in a dialogue with the Court, through third party interventions or by other

means.



Addressing the element of surprise

–

keeping member states informed

and involved

The breakout session focused on the benefits of keeping member states informed

and involved in developments at the Court. The premise for the discussion was that

consistency in case law, legal certainty and predictability

–

as well as transparency

–

are key factors with regard to the legitimacy of any legal system. In the Convention

system, notwithstanding the fact that there is no “erga

omnes”

effect, judicial decisions

may still have an impact on stakeholders beyond the parties of a case, which raises

questions about participation and transparency. Ideas discussed in the session

included whether the Court should give reasons for referral of cases to the Grand

Chamber? And if Grand Chamber hearings could be improved to ensure a more

meaningful debate, including at the stage of oral hearings? It was also discussed

whether a new procedure should be introduced that would allow a larger group of

member states to bring controversial Chamber decisions before the Grand Chamber

(where these states would then appear as third parties before the Grand Chamber)?

Some participants noted that even though legal certainty surely was desired, a certain

element of surprise is inherent in any court system. It was equally clear that adequate

and timely information is a natural prerequisite for participation and generally desired

by all. Participants generally felt that it would be desirable to have the Court send out

notifications to member states about which cases are pending before the Grand

Chamber, including the set deadline for intervention and other relevant information. It

was felt that this would not put too much of a burden on the Court. Some felt that the

establishment of an Advocate General at the Court was an idea worth revisiting. The

Government Agents’ network was highlighted by some participants as another good

supplementary tool to keep the member states informed. Restructuring the Court’s

website to a more user-friendly format and an easier use of modern-day devices were

also mentioned. Some participants found it desirable if the Court could give reasons

as to why a given case is being referred from a Chamber to the Grand Chamber.

While others expressed certain reservations in this regard. Regarding the possibility

for a larger group of states to demand a case tried at the Grand Chamber, this was

an interesting idea. There was a discussion if it would require changes to the

Convention. Some believed that this would be the case. There could, however, be

other ways to achieve the same aim, one being to approach the Court with a grouped

request under the present rules with the expectation that it would be accommodated

by the Court.



Advocating the Strasbourg system

–

a shared responsibility

The breakout discussion focused on how to better advocate the Strasbourg system

in light of the common understanding that a lack of clear communication

–

as well as

unbalanced communication

–

may play out negatively with regard to national

audiences’ perception

and accept of the Convention system. This can, inter alia, lead

to misunderstandings on the scope of judgments and provide a wrong picture of how

the system works, including the importance of reforms already carried out. A number

of factors and dynamics may add to this problem. Questions posed included: Are we

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good enough at explaining what goes on in Strasbourg? Could we be better at

explaining the advantages of the Convention system to the broader public? Could

more be done at the Strasbourg level, e.g. by appointing a spokesperson for the Court

or a more active use of social media? Could the communication between the Court

and the Government Agents be improved? How can national decision-makers,

authorities and civil society play a constructive role in this regard? Some participants

expressed the view that the Court should be sensitive to the implications that its

judgments have even though the Court is, naturally, not there to please the member

states. The point was made that member states should engage in the dialogue with

the Court in good faith and never deliberately misinterpret the Convention. It was

highlighted during the discussion that there is a fundamental difference between

advocating the Strasbourg system as such and explaining a single specific judgment.

Single judgments can often be much more controversial and difficult to explain. Many

participants found that member states need to reiterate and emphasise why it is

beneficial for them to be part of the human rights system. In this regard, training and

education were considered to be very important elements. Participants identified

National Human Rights Institutions as important actors in advocating the Strasbourg

system and there were perhaps still untapped resources to be found there. The point

was raised that it is generally important to not only focus on what the Court has said,

but also what the Court has not said in a specific case, so as to avoid

misinterpretations of the Court’s

judgments. Regarding the Court’s possible use of

social media, it was raised as a point that it would require considerable resources to

communicate a given judgment on, for example, Twitter as it requires a very thorough

analysis to communicate in such a short format.



Increasing third party interventions by member states

The breakout discussion focused on how to make it easier for member states to

intervene and participate in important and principled cases before the Court on the

assumption that this may provide important means for strengthening the legitimacy of

the Convention system. It was discussed if the Court could do more to inform member

states or actively invite member states to intervene in cases that raise questions for a

wider number of states? It was also discussed whether it is a problem that the Court

does not provide any reasoning for referrals to the Grand Chamber and what member

states themselves can do to co-ordinate their participation in important cases? The

participants agreed that third party intervention is a useful tool that should be used

more. It allows member states to present their views and concerns directly to the

Court. It is noteworthy that the instrument of third party interventions is not used more

widely by member states. The participants generally felt that the focus of third party

interventions should be at the Grand Chamber level where the real difficult legal

issues are most often being dealt with. Better information about these cases to

member states would be central for an increased use of the instrument. In this regard

participants identified it as a particular challenge when a Chamber relinquishes its

jurisdiction in favour of the Grand Chamber and no information is given as to why this

is the case. It was generally felt that the Court in these instances should inform about

the reasons for relinquishment to allow member states to assess the relevance of a

third party intervention from their side.



Increasing third party interventions by civil society, NHRIs and IOs

The breakout session focused on interventions by civil society, National Human

Rights Institutions (NHRIs) and International Organisations (IOs) and how these

interventions may enhance the quality of the Court’s argumentation and contribute to

the legitimacy and authority of the Court’s judgments. The workshop

debated how to

ensure a further participation by civil society, NHRIs and IOs in important cases before

the Court. It was acknowledged and accepted that the Court has limited resources,

and that such interventions can be a very useful tool for the Court to gain valuable

background information on a particular state policy, practice or situation. Furthermore,

such interventions may provide additional perspectives and contribute to discussions

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mobilising the general public. The participants were generally very positive towards

the practice of third party interventions, highlighting that the interveners can endow

legitimacy to a judgment but also act as factfinders in a given case. Some participants

mentioned that it could give cause to a certain frustration among non-governmental

organisations when their submission for third party intervention was rejected and no

reason for this was provided by the Court. The participants generally felt that the 12-

week deadline for intervention was short, especially if one only became aware of the

case at a later stage of the process. Due to this, and because of the desirability to

better be able to assess relevant cases with regard to possible intervention, it was

generally felt that the Court should consider providing more information about pending

cases at an early stage.



A new role for the Committee of Ministers?

The breakout session considered whether, for example, the Committee of Ministers

should be used to discuss developments in the jurisprudence of the Court. The point

of departure was that international courts do not operate as parts of polities that

include functioning political legislatures (as we know from the national level). Once an

international agreement is in place, it is largely withdrawn from the grasp of its

individual makers. This profoundly changes the relationship between law and politics.

Although it is, in principle, possible for member states to amend the Convention, it is

in practice often a difficult path. The thesis put forward was that the lack of political-

legislative inputs could constitute a challenge to the long-term authority of the

Convention system. Seeking the right institutional balance within the system is a

challenge and various institutional means need to be considered to that effect. One

possible way to address this challenge could be to create new channels for a more

pointed communication between the political and legal levels with regard to the

understanding of the Convention and its evolution. One among more options could

be to use the Committee of Ministers in this regard. It was put forward as a premise

that such debates should never be about specific judgments, but rather concern the

general understanding of the Convention on questions of importance for member

states. The reasoning behind such a proposal being that it, within the existing

institutional framework, could create a more direct dialogue between the Court and

the member states. This would give the Court a clearer picture of consensus among

governments on certain areas of law, and thereby help solving some of the challenges

of applying “treaties over time” and anchor the development of European human rights

in a more democratic structure. The debate among the participants was very lively. It

was clarified during the discussion that what was being proposed and debated was

not a direct dialogue between the Ambassadors of the 47 member states and the 47

judges of the Court physically being in the same room, but rather a less indirect

dialogue than what is currently the case. Many participants, however, still expressed

reservations about using the Committee of Ministers for discussions about the

developments in the jurisprudence of the Court. Some of the points raised were that

the Committee would then be given too many roles, that discussions in the Committee

would most likely evolve around dissatisfaction with single judgments, that such

discussions might infringe upon the independence of the Court and that member

states already have the possibility to express views on topical issues through existing

structures within the Convention system. At the same time, participants generally

declared that they were open to more dialogue about the case-law of the Court, but

maintained that the Committee of Ministers was not the right platform for such

dialogue. Instead, some participants suggested to having such a dialogue in a more

informal setting where civil society could also be included. The conclusion was thus

that the diagnosis was right, but more recipes had to be considered.



Codifying subsidiarity in the light of recent case law

The breakout session discussed

how the Court’s application of the principle of

subsidiarity has undergone significant development since the early days of the Court

as well as more recently following the Brighton Declaration and the adoption of

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Protocol No. 15. Important cases include Animal Defenders International v. the United

Kingdom, S.A.S. v. France, and recently, on the question of deportation of foreign

criminals, Ndidi v. the United Kingdom. It follows from this practice that the Court,

premised on actual and good faith domestic engagement with Convention principles,

exercises restraint in light of various factors, including the direct democratic

legitimation of domestic policy-makers, the domestic decision-making process, the

domestic assessment of evidence and facts as well as the various European and

international standards of protection. The session discussed this development and

how to use it with the goal of further refining and codifying the key concept of

subsidiarity. The participants generally did not find that the concept of subsidiarity

should be codified as such, since this may freeze the concept and restrain the Court

in its continued usage of the concept. Some participants also questioned if it would

actually be possible to draft a wording that would accurately capture the concept.

While most participants, thus, did not support codification in a strictly legal sense there

was broad support to the idea that developing a more robust concept of subsidiarity

is important for the further development of the Convention system and that positive

developments in this regard should be supported and acknowledged.



Judicial dialogue post Protocol 16

The breakout session discussed the optional Protocol No. 16 as a tool for enhancing

judicial dialogue, using requests for advisory opinions, as a new and direct channel

for communication between the highest domestic courts and the Court. The Protocol

introduces an option for the domestic courts to ask the Court for non-binding advisory

opinions on questions of principle relating to the interpretation or application of the

rights and freedoms enshrined in the Convention. The discussion took place in the

context of the expectation of entry into force of the Protocol within the near future in

light of the recent French announcement of its intention to ratify Protocol No. 16. The

participants primarily discussed possible positive and negative aspects regarding the

Protocol. Some of the positive aspects highlighted during the discussion were that the

Protocol could enhance the coherent application of the Convention; could prevent

violations of individual rights from occurring already at the national level; may enrich

the agenda of the Court; could be seen as a feedback mechanism to the Court; could

enhance a better structured judicial process and may enhance the role of third parties

and their interventions, including the Commissioner for Human Rights. Regarding the

workload of the Court, the point was raised that, at the initial stage, the Protocol might

increase the workload, but that the workload might be reduced in the long run because

the national courts are applying the Convention better. Some of the negative aspects

highlighted during the discussion, were the risk of undermining the authority of the

national courts; the uncertainty about whether the Court would in fact provide an

advisory opinion or not; the uncertainty of the consequences if the Court did not issue

an opinion, and that confidential information may be revealed to the applicant and

other parties in connection with the Court’s treatment of a request for an advisory

opinion. There was broad agreement among participants in the session that

uncertainty about how the arrangement will work in practice was a major reason

behind the limited number of ratifications so far. Many had for this reason adopted a

“wait and see” approach. Another uncertainty was the Opinion 2/13 by the EU Court

of Justice on the EU’s accession to the

Convention. Participants noted that Protocol

No. 16 is not an easy instrument and that a comprehensive guide from the Court’s

would be welcomed.



Subsidiarity

–

parliaments as key interlocutors

The breakout session focused on how, when dealing with policy issues, it is becoming

increasingly recognised in the case law of the Court that effective parliamentary

engagement in the “pre-interference assessment” of human rights, i.e. the

assessment by the legislator of the possible human rights implication of draft

legislation, is fundamental. The role of national parliaments has been addressed in

several prominent cases, such as Animal Defenders International v. the United

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Kingdom and S.A.S. v. France. In the latter case, the Court, inter alia,

stated that: “In

matters of general policy, on which opinions within a democratic society may

reasonably differ widely, the role of the domestic policy-maker should be given special

weight”. On the basis of the Court's recent case-law,

it was discussed how the quality

of the parliamentary process can provide the basis for a more robust concept of

subsidiarity. It must be acknowledged that many contemporary human rights issues

facing European societies today involve questions of public policy that cannot only be

resolved in the legal sphere (neither by national nor international courts). Democratic

engagement with human rights issues is therefore important. There is of course an

important distinction between absolute human rights, e.g. the prohibition of torture,

which the political level may never abrogate, and human rights that allow for

restrictions in the interest of public policy considerations. The breakout addressed

questions such as how a human rights culture can be fostered within parliaments,

making it a natural part of the legislative process to consider Convention issues, and

how to ensure that the necessary knowledge and expertise on Convention law is

present in the legislative process? Participants observed that both the Brighton and

Brussels declarations made specific reference to the role of national parliaments, inter

alia by agreeing on a number of practical measures designed to achieve better

national implementation of the Convention, including by providing national

parliaments with information about the compatibility with the Convention of draft

legislation. A number of participants questioned whether national parliaments have

the necessary motivation to get involved in human rights issues. Parliamentarians, it

was pointed out, do not always see the connection between their work and the

development of human rights standards. They therefore need support. In this regard

it was important to be aware of the fact that Members of Parliament often play a dual

role, being defenders of international human rights on the one hand, but also national

politicians having to meet sometimes conflicting expectations of their democratic

electorate, on the other hand.

Appendix



Programme, High-Level Expert Conference

“2019 and Beyond –

Taking

Stock and Moving Forward from the Interlaken Process”,

22 to 24 November

2017, Kokkedal Castle

List of Participants, High-Level Expert Conference

“2019 and Beyond –

Taking Stock and Moving Forward from the Interlaken Process”,

22 to 24

November 2017, Kokkedal Castle

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