Thursday, 19 April 2012

The Brighton Declaration: watering down the European Court of Human Rights

UPDATE 18/04/2012: The latest draft of the "brighton declaration" is available here, and has already got rid of many of the problematic issues the original draft posed.

Unfortunately, in line with recent posts about the party I've supported all my political life, I had to endure the protestations of a Lib Dem today that it was a Good Thing&tm; to make it harder for individuals to apply to the European Court of Human Rights (ECtHR). It's a sad time, I feel, when a supposed liberal stands up for the limitation of accessibility to the "safeguard" court for our individual rights in the favour of both ease and financial simplicity. I hope sincerely that he is just deluding himself, and set out why I believe that to be so below.

This has all come about from news on what is called "The Brighton Declaration", a document aiming to set out changes to the ECtHR leaked earlier this year(1). While it is in the process of being debated at a conference right now, and will no doubt suffer some forms of amendment, there are some very fundemental changes it is attempting to make, all revolving around limiting the ability for the ECtHR to take cases on (or rather, strengthening rules that *require* the ECtHR to reject cases outright).

Alas the Lib Dem in question at the start of this blog post has failed to see how this change to the international court is something that allows states to restrict what goes from national to ECtHR court level, and how it is a shift of power against the individual.

Let's start with the rules as they stand. When it comes to what cases the ECtHR can take, it's all down in law...I reproduce the text here in full...

1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
2. The Court shall not deal with any application submitted under Article 34 that
a. is anonymous; or
b. is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.
3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that :
a. the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or
b. the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.
4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.

So, when can you *not* bring your case to the ECtHR? Outside of 6 months after your judgement that you're appealing is one. Trying to do it anonymously is another. More importantly if the ECtHR determines your case to be as near to being "the same" as a previous case, that the case is simply not relevant to human rights, or that your case has been brought despite there being no legal grounds, then it too will be inadmissible.

Within time, within law, and not materially the same as a previous case. These are the criteria that ECtHR workers have to assess all admissions with initially.

The Brighton Declaration changes this in several ways.

1. It tries to reduce the time limit to apply.

The logic here seems to be that there are too many cases to deal with, so we have to reduce the case load, and one way to do this is to try and increase the option of stating a case is inadmissible on grounds of time.

This to me seems entirely unethical, while the UK citizens involved in such cases may not have much to worry about in terms of getting a case together in less than 6 months, what about those countries where legal advice is harder to get, where legal advice is less used to the machinations of the ECtHR? Essentially the worrying aspect of the change to the time limit is that those who are most likely to be affected by it are those that actually need the time to get their case together.

2. It wishes to make it part of the Convention to consider 'subsidiarity', or the need for the smallest bodies to have power over their own affairs, and 'margin of appreciation', or the level to which a state can ignore interpretations of human rights law

This would fundamentally change the purpose of the Convention on human rights. The law as it stands is a codification of our rights against individuals and states that try to take those rights from us. By putting subsidiarity as a principle, and a margin of appreciation, in to the convention it places a great "But," on the end of that particular sentence. It says that these are your rights, kind of.

On this point, I'd like to sidetrack to my earlier discussions with this Lib Dem. His protestations against my view were largely due to his stance that "reality" dictates that these reforms are necessary to reduce workload WITHOUT causing legal uncertainty. I guess he's right, if you believe for a second that making it part of the Convention that the ECtHR mustn't interfere if the state is only *partly* wrong isn't itself a default state of legal uncertainty, and indeed increasing the scope with which judges can be legally uncertain on.

3. It intends to make it the case that a "local" justice body not investigating a case is no grounds for ensuring an application is admitted to the ECtHR

In 3. b) of Article 35 I pasted in above, a key thing is that the ECtHR acts on behalf of an individual that is being denied justice, for matters that may or may not be more "trivial". Of course determining if they're trivial or not is something that local bodies *should* be doing, and if they aren't going to then it is surely up to the ECtHR to protect that right?

The problem here is that the state could effectively deny access to the ECtHR through inadmission of a person's case at the lowest levels. This may not sound like a problem here in the UK, but what about other states?

4. It intends to create a situation whereby national courts can get "advice" from the ECtHR, and block the individual's claim from being able to then be taken to the ECtHR

Taking the step of denying access to the ECtHR further, it allows courts on *any* human rights issue to ask for an interpretation from the ECtHR. The idea here is that it is quicker for the ECtHR to provide non-binding advice than to take a case for full consideration, though this is surely a falsehood since the same level of facts would have to be considered before making such advice. The effect, however, is to mean a state can perform to block an individuals passage through to the ECtHR.

In simple terms the state could take advice, and apply that advice as they see fit. the margin of appreciation mentioned above means that it doesn't have to apply the advice in full, just that it takes it in to consideration. The individual then would have their application to have their case heard *automatically* rejected by the ECtHR unless there was severe reasons for the ECtHR to do otherwise.

It is here where the Brighton Declaration gets woolly, perhaps intentionally so. It's already said that the ECtHR has to take in to account that the state is doing what it can to solve the problem an individual is having, and that the ECtHR doesn't have the right to comment on what the state does as long as it is within a particular "range" of the ECtHR's views or Conventions wording.

For the ECtHR to then rule that a state's national court has "clearly erred" in it's judgement is extremely hard. After all, if the state has taken it's advice, and has made some form of changes, and the court has ruled with those changes in mind, how has it erred? You can still have an individual that feels their rights have been abused, but they now have no way to fight that. State bureaucracy - 1, individual power - nil!

Furthermore, does this even reduce the caseload for the ECtHR? Most of the load is people waiting to be assessed for admission, and those who feel wronged by the above process will still be able to apply. Time will still have to be spent working out if the court erred, or if interpretations are wrong, before the case is rejected or accepted. It may make it slightly quicker for the supervised law student assessing the cast out the case, but how much quicker?

Doesn't this do less to help the court with it's case load, and more to help the state with it's ability to make rulings and laws without interference from the ECtHR?

So what does it all really mean?

The Lib Dem that was discussing this with me claimed this was all in the name of making a ECtHR that can get through it's caseload, yet none of the above measures stop people from physically applying, the only thing that would stop that is if the state actually paid more attention to rectifying it's human rights abuses. It also seems to make little difference to the speed at which cases would be heard, the only thing that would do that would be to provide the court with more resources, and provide catalysts for reform of their processes.

So if we're not improving the processes, or at least only tinkering at the edges, but at the expense of freedom for individuals to have their cases heard...what are we actually doing that can be called "reform"? The court already acts autonomously to pay respect to the jurisdiction of nation states, and to give them some latitude, so why does this need codifying in law? The court already throws out cases (a lot of cases in fact) that don't meet the sensible criteria of Article 35, so why does it need any help in doing that by being forced to throw out cases that may have otherwise been legitimately seen?

Take this analogy...if we owned a company of a chain of stores, and we had many more customers over the years coming in with complaints...would we try to resolve those complaints faster, bringing in more staff to deal with them and process them...or would we listen to the shops in our chain that have caused the complaints and decide on the basis of their analysis of the complaint that we cannot take the complaint further? How far does this take our company, if our customers cannot trust us to take seriously their complaints?

The ECtHR needs reform, the people involved in it's running, and observing it, say as much. But what they need is to evolve, not to be fenced in. As the EU grows as a political body, so will the caseload, especially as more and more nations with questionable human rights records are added to the pot. We can ignore it for now, but the ECtHR needs to be able to deal more efficiently with applications, as we have to assume that it is spending no more than the time it needs on coming out with judgements. This comes quite simply down to resourcing that staffing need, since just giving the same small amount of staff more options to rubber stamp the case as "denied" doesn't stop that they're still getting all those cases to rubber stamp.

And finally, if the number of cases going through the court that are legitimate are too much then we need to have more judges available to assess the claims, if this causes "legal uncertainty" then the question that must be asked is "how do we improve legal certainty" not "how can we reduce the case load so that we can get that level of uncertainty down", it's incredibly counter-productive to upholding our rights to look at our cases as a burden rather than a duty.

It is telling then if we look at the views of the expert committee's on reform of the court(2), to decide why exactly the Brighton Declaration is worded as it is...

It is also unlikely that any new filtering mechanism, given that its introduction would require entry into force of an amending protocol to the Convention (see further below), could come into effect or, at least, have yet had any great impact by the envisaged date of 2015 for resolution of the backlog. The CDDH has therefore decided to reflect these circumstances by shifting the emphasis of the present report from possible measures to increase the Court’s filtering capacity, to possible measures to increase the Court’s capacity to process applications generally.

These reforms, limiting access to the ECtHR, wouldn't be in force before 2015, and yet the committee overlooking reform of the ECtHR say that 2015 should be a "all clear" mark for the court having made reforms already, slight in terms of the Convention and large in terms of internal process, that are going to clear the backlog of cases. The expert committee instead would rather focus on *the resources* the court has, and how they're organised.

Human rights groups are concerned(3) about the declaration and it's ability to limit the court's power to protect individuals, the expert committee overseeing reforms don't believe they're necessary to clear the backlog (in as much as the backlog will already be clear before they come in to force), and legal commentators have expressed similar concerns as the Human rights groups as well as further concerns about what it could mean for our own human rights laws here in the UK(4).

So...tell me again, is this really not (in significant part) about restricting the ability for individuals to get the protection that the Convention originally intended to give them?

References:

1. The draft Brighton Declaration on the Guardian
2. Evidence that even WITHOUT the Brighton Declaration, the backlog of cases will be cleared by 2015
3. Human rights bodies response to the Brighton Declaration (pdf)
4. What the Brighton Declaration currently means for the Human Rights Act, and paving the way for a Bill of Rights

Further reading:

An overview of the Brighton Declaration
Another view on the Brighton Declaration
How the ECtHR is already exercising autonomy in being less "interventionist"
Are the ECtHR admission processes transparent enough?
How the ECtHR works in processing cases
Brighton ECtHR reforms likely to be heavily watered down
Overview of where the Brighton Conference is to date (18th April)