Thursday, 19 April 2018

Guest Post: Commentary on the Final Copenhagen Declaration

Now that the final Copenhagen Declaration has been published, it is my pleasure to publish a guest post by the editors of the earlier commentary series of the draft Declaration, Janneke Gerards and Sarah Lambrecht:


The Final Copenhagen Declaration: Fundamentally Improved With a Few Remaining Caveats

By Janneke Gerards (professor of fundamental rights law, Utrecht University) and Sarah Lambrecht (researcher, Research Group Government and Law, UAntwerp and law clerk at the Belgian Constitutional Court) 

At the High Level Conference meeting in Copenhagen on 12 and 13 April 2018 under the Danish Chairmanship of the Committee of Ministers of the Council of Europe, the Copenhagen Declaration was adopted. This Declaration was much anticipated, as the draft version issued on 5 February 2018 by the Danish Government was heavily criticised. Academics (on EJIL:Talk!, Strasbourg Observers and ECHR Blog, UK Strasbourg Spotlight and Verfassungsblog), NGOs (see also the Director of ICJ, the Executive Director of Open Society Justice Initiative and the Danish Helsinki-Committee of Human Rights), national human rights institutions, members of national parliaments in PACE and civil servants expressed grave concern about the harm the draft Copenhagen Declaration could do to the Court’s independence and authority, about its misconstruction of the Court’s jurisdiction and role (especially when defining the Convention system’s subsidiary nature), its potential to undermine the universality of human rights, and its objective of installing new channels of ‘dialogue’, which could have the effect of exposing the Court to undue political pressure by national governments. Overall, most commentators agreed that the initial draft, if adopted as such, would damage the Convention’s system of protection of human rights in Europe as a whole. 

It has now turned out that much of this criticism was shared by a large number of States. Prior to its adoption, intense negotiations and redrafting took place in the Drafting Group on the draft Copenhagen Declaration. The States critical of the initial draft succeeded in fundamentally improving it, deleting or watering down the most criticised features of the initial draft and changing its overall tone. In fact, a text comparison makes clear that the Declaration has been almost entirely rewritten. It appears that the Danish Government’s fundamental criticism and its reform agenda were not received with much enthusiasm across Europe. On the contrary, the States Parties visibly have chosen not to endorse this reform agenda. Illustrative is the insistence of the Luxembourg Minister of Justice that the adopted Copenhagen Declaration would not receive the support of Luxembourg if it could be read or even perceived as a limit that politicians would like to impose on the power and authority of the Court. 

The Prism of Subsidiarity

One of the most striking differences between the initial draft and the final version of the Declaration concerns the notion of subsidiarity. The initial draft viewed the Court’s role exclusively through the prism of subsidiarity. This in fact was a skewed prism, as one of the authors demonstrated in this comment series: the draft did not realistically reflect the foundations of the Convention system, the meaning of the notion of subsidiarity and the actual use of the margin of appreciation doctrine by the Court. This misapprehension also extended to the Courts’ more recently developed process-based approach, which is closely related to these long-established doctrines.

In rewriting the initial draft, references in the initial draft to the principle of subsidiarity and the margin of appreciation have been removed (paras. 4, 8, 9, 12, 22, 26 and 29 of the initial draft) or reworded (paras. 5, 10, 13, 14, 17, 23, 24, 25, 27 and 28 of the initial draft) in the final Copenhagen Declaration (paras. 4, 7, 8, 10, 13, 28 and 31). The end result constitutes a complete overhaul. Instead of instructing the Court on how it should apply the margin of appreciation and when it should avoid intervening, the final Declaration reiterates the Court’s jurisprudence on the principle of subsidiarity and the margin of appreciation (para. 28). Controversial paragraphs on how the Court should approach asylum and immigration cases have been deleted (paras. 25 and 26). The final Declaration also no longer ‘welcomes and encourages that subsidiarity is increasingly playing an influential role in the Court’s case law and as an organising principle for the Convention system’ (para. 12 of the initial draft). Rather, it ‘reiterates that strengthening the principle of subsidiarity is not intended to limit or weaken human rights protection, but to underline the responsibility of national authorities to guarantee the rights and freedoms set out in the Convention’ (para. 10 of the Copenhagen Declaration).

The resulting paragraphs mainly reflect the European consensus on subsidiarity that is already expressed in earlier declarations. However, the upshot is that it does do little more than this. In a time where we are witnessing a clear regression of the rule of law and of the effective enforceability of human rights in an increasing number of States Parties, the Copenhagen Declaration missed an important opportunity to give a strong signal to the States. These national developments have been reduced to a problem of national implementation of the Convention (see e.g. para. 12) and of execution of the Court’s judgments (see e.g. para. 20) and to a caseload challenge for the Court (see e.g. para. 45). In addition, although the onus is now more clearly on the States to implement the Court’s judgments, as Ed Bates has suggested, it can only be ‘hoped that the States will now put their full energy, effort and attention into backing the Convention system going forward’.

The Need for Dialogue and the Risk of Undue Political Pressure

Another much criticised aspect of the draft Declaration was the way it gave shape to the need for dialogue between the States Parties and the Court. The draft proposed that: (1) States Parties should be able to indicate their support for the referral of a Chamber case to the Grand Chamber (paras. 35 and 38), (2) States Parties should increase their third party interventions, especially in important and principled cases before the Grand Chamber  (paras. 34 and 39-40), (3) States Parties should discuss the general development of areas of the Court’s case law of particular interest to them and, if appropriate, adopt texts expressing their general views (paras. 32-33 and 41), (4) States Parties should hold a series of informal meetings to discuss relevant developments in the jurisprudence of the Court (para. 42).

By doing so, the draft text went far beyond the conventional mechanisms for dialogue and in fact aimed to ‘rebalance’ the power between (the executive branch of) the States Parties and the European Court of Human Rights, as was detailed by one of the authors in this comment series as well as by the Court itself in its opinion on the draft Copenhagen Declaration (paras. 15-16). When contemplating new ways for national governments to interact with the Court, States Parties have to be very careful about the potential repercussions on the Court’s independence. In no way should such proposals be a pretext for institutionalising ways for national governments to exert undue political pressure on the Court. 

For this reason, it is good news that the most controversial new way for national governments to interact with the Court has been deleted. The final Declaration no longer ‘encourages States Parties to discuss the general development of areas of the Court’s case law of particular interest to them and, if appropriate, adopt texts expressing their general views’ (para. 41 of the initial draft). Also, there will no longer be ‘a series of informal meetings of States Parties before the end of 2019’ to discuss ‘relevant developments in the jurisprudence of the Court’ organised and hosted by the Danish Chairmanship (para. 42 of the initial draft). Instead, the Danish Chairmanship will ‘organise and host, before the end of 2018, an informal meeting of the States Parties and other stakeholders, as a follow up to the 2017 High-Level Expert Conference in Kokkedal, where general developments in the jurisprudence of the Court can be discussed, with respect for the independence of the Court and the binding character of its judgments’ (para. 41).

At the same time, some problematic proposals have been retained. The final Declaration still invites ‘the Court to adapt its procedures to make it possible for other States Parties to indicate their support for the referral of a Chamber case to the Grand Chamber when relevant’ (para. 38; para. 38 of the initial draft). As noted previously, one can question whether it is appropriate to ‘invite’ the Court to alter its own procedures, especially when the Court has not given its clear support to this. Moreover, the proposal was not amended to ensure that other stakeholders were given the same privilege to allow for a balanced mechanism, as was also suggested previously. A way to achieve this could be through opening up this mechanism by allowing ‘any person concerned who is not the applicant’ (cf. Article 36 (2) ECHR) to indicate their support for referral of a Chamber case to the Grand Chamber, as proposed by Lize Glas in this comment series. Once such support has been issued by a State Party or a person concerned, any State Party or any person concerned should also be able to indicate why a judgment should not be referred.

On a more positive note, just like the draft, the final Declaration underlines that the execution of judgments is a key obligation. Also, it encourages involvement of civil society in the dialogue on the implementation of the Convention. The value of this has been clearly explained in Antoine Buyse’s contribution to our comment series. In addition, the Declaration encourages both ‘the Court to support increased third-party interventions’ (para. 39) and the States Parties to ‘[build] the necessary capacity [to increase coordination and co-operation on third-party interventions] and [communicate] more systematically through the Government Agents Network on cases of potential interest for other States Parties’ (para. 40). The Copenhagen Declaration can thus be used as a foundation to further highlight the proper ways for States to engage in a dialogue with the Court via third party interventions, and invigorate this underused possibility.

The Court’s Resources

Perhaps the most important practical addition to the draft version is the express acknowledgement in the final Declaration of ‘the importance of retaining a sufficient budget for the Court, as well as the Department for the Execution of Judgments, to solve present and future challenges’ (para. 52) and the call made upon the States Parties to ‘consider making voluntary contributions to the Human Rights Trust Fund and to the Court’s special account’ (para. 53). Compared to the draft version, these invitations are both broader (the draft version only referred to the Court, not to the Execution Department, see para. 52) and more specific. Indeed, especially now that the Russian Government has withdrawn its financial contribution to the Council of Europe, lack of budget is one of the greatest threats to the continuing effectiveness of the Convention system. It is therefore certainly to be welcomed that this concern is now addressed. At the same time, the text of paras. 52 and 53 is very vague and weak. There are no guarantees that the Court’s and the Execution Department’s budgetary worries are over, especially considering that extra contributions only need to be made on a voluntary basis. 

The Outlook for the Future?

Overall, thus, it is obvious that the text of the final Copenhagen Declaration is very different from the draft version and it is far less problematic from the perspective of European protection of fundamental rights. There is great political value in this. To many States, the Copenhagen High Level Conference offered considerable opportunity to reaffirm their adherence to the Convention system and its underlying principles. Perhaps even more importantly, it showed that the Danish efforts to tone down the importance of the Convention system have backfired. If anything, the final Declaration exposes that the criticism of governments such as the Danish is not widely shared.


At the same time, at many points, the Declaration is still problematic or weak, and from a practical perspective, we could easily have done without the Declaration. Indeed, in our first blogpost in the series on the draft Declaration, we already explained that organising High Level Conferences seems to have grown into something like a ritual. These conferences always appear to result in declarations containing a cocktail of more or less the same ingredients. These declarations have had considerable impact in the beginning, but due to the lack of new ideas and ingredients, this is increasingly less so. The final Copenhagen Declaration seems to prove the truth of this analysis. All topics addressed in the Declaration can be found in earlier High Level Declarations and action plans, often even in more or less the same wording, and no really new or exciting solutions and ideas have been presented. Indeed, it makes clear that, if the aim really is to safeguard the long-term effectiveness of the ECHR system, it would have been more useful to invest the available time, energy, resources and political capital in actually implementing all action plans and recommendations previously adopted. It is just to be hoped that this will be the course pursued in the coming years.

Please note that the views expressed by Sarah Lambrecht here are personal to the author. This commentary was published earlier on Strasbourg Observers.

Wednesday, 18 April 2018

Training Seminar on Implementation of Strasbourg Judgments

The European Implementation Network is organising a training seminar in Strasbourg on 21-22 June on implementation of judgments of the European Court of Human Rights. The training course is specifically geared towards civil society organisations. The participation costs of those accepted will be borne by EIN. This is the information of the organisers:

'CSOs are accorded a critical role in the Council of Europe’s (CoE) process that underpins the supervision by the Committee of Ministers (CM) of the implementation of these judgments (known as the CM judgment execution process). This is made possible under Rule 9.2. of the Rules of the CM. However, there is little readily accessible information on how this process works and how CSOs can engage with it to best effect, with the result that this powerful mechanism for implementing human rights is very underutilised. 

The aims of the seminar are to equip CSOs to use the CM judgment execution process to support full and effective implementation of ECtHR judgments; and to share best practice on advocating for implementation at the national level.

Seminar content:

The seminar will cover the following issues:

  • The CM execution process and the role of NGOs.
  • How to use Rule 9.2 submissions to push for effective implementation at national level: case studies.
  • Rule 9.2 submissions: group exercises on developing general measures and/or responses to non-implementation. The session is aimed at helping participants who have not engaged with the CM judgment execution process to do so – gaining advice from other participants.
  • Advocacy: EIN and Strasbourg-based advocacy, advocating for improved implementation structures at the national level.

Training methodology:

The seminar will combine:

  • presentations by experts on how to engage effectively with the CM judgment execution process;
  • sharing of learning by participants who have already engaged with implementation, whether through the CM judgment execution process, or at the domestic level;
  • group exercises to help participants starting work on a new case to develop the content and recommendations they should include in their written submissions to the CM (i.e., Rule 9.2 submissions).  

Target audience:
Staff of civil society organisations working on, or planning to work on, implementation of ECtHR judgments; independent lawyers supporting civil society organisations in these activities.

Criteria for selection of participants:
Participants will be selected on the basis of following criteria:

The impact resulting from full and effective implementation of any cases their organisation is supporting.

Any relevant experience the participant is able to share. The training methodology requires a number of participants with particular attributes – some with experience in different aspects of implementation, others with cases which will be particularly suitable for group exercises.
Participants will be limited to one per CSO and are required to have a good working knowledge of English. They must be present for the full duration of the seminar.

Please note that EIN will be conducting further training seminars on an ongoing basis. Applicants not selected will be able to apply for a later seminar. CSOs that are supporting cases currently before the ECtHR should also consider applying for future EIN training seminars as and when their cases are settled.

Travel and accommodation expenses:
EIN will cover the costs of participants’ travel, accommodation, food and visas. Guidelines on the funding procedure will be provided to selected participants.

Application process:
Please complete the application form and return to Agnes Ciccarone (aciccarone at einnetwork.org) by 26 April 2018. Please also arrange for your organisation to send a letter supporting your application, confirming that you have a good working knowledge of English and can be present for the full duration of the seminar.

The results of the application review will be made know by mid-May.'

Monday, 16 April 2018

The Copenhagen Declaration on the ECHR - Final Version Adopted

Last week, the High Level Conference meeting under the Danish Chairpersonship of the Committee of Ministers took place in Copenhagen (12-13 April). The final text of the Copenhagen Declaration was adopted at that occasion. As readers of this blog will know, this was done after lots of diplomatic wrangling as well as online academic and expert debate. see the earlier comments series on the ECHR Blog. 

My initial thoughts are that the Declaration truly reads as a political compromise. Most of the much-criticised parts of earlier drafts have been left out in the end. The results is a smoothened text, with the hard edges polished away and not much new to show. Rather it reads as a summary of well-known developments and very general statements of the last few years. In a way, this very much echoes the earlier trajectory that led to the Brighton Declaration a few years ago. In that latter case, the United Kingdom, like Denmark currently, started out with a very critical agenda towards the Court and it was very much through external pressure of civil society and diplomatic efforts of other ECHR state parties that the final text also presented much less news than originally anticipated. One can only hope that these types of so obviously domestically-driven charges (e.g. concerns about migration cases) at the Court and subsequently mitigated by other key actors will not be the way ahead for the future. Although it does bring out various key discussion points and concerns, much effort gets put into wrangling about diplomatic texts rather than focusing on truly improved implementation at the national level - an aim virtually all high-level declarations in this context claim to strive for.

For initial commentaries, see also Ed Bates on UKStrabourgspotlight and Geir Ulfstein and Andreas Follesdal on EJILTalk! The ECHR Blog will publish a more extensive guest comment later on this week.

Thursday, 12 April 2018

Protocol 16 Enters into Force on 1 August 2018

It has taken a few years of patience, but this month the tenth ratification of Protocol 16 to the ECHR was made, by France. The Protocol to the European Convention, adopted in 2013, will enter into force on, 1 August of this year. The document, also known as the "dialogue Protocol", provides for the possibility of the highest national courts to ask the European Court for advisory opinions on "on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto" in pending cases before them. In that sense, the new procedure resembles to a certain extent the preliminary ruling procedure of the Court of Justice of the European Union.

In spite of the potential added workload, the President of the Court, Guido Raimondi, is optimistic. He stated:

“The entry into force of Protocol No. 16 will strengthen dialogue between the European Convention on Human Rights and the national higher courts. This is a milestone in the history of the European Convention on Human Rights and a major step forward in human rights protection in Europe, as well as being a fresh challenge for our Court”.

Indeed, for the first time a direct, formalized procedural to-and-fro between the highest national courts and the Court in Strasbourg will become possible. For those ECHR state parties who have not (yet) shown keenness to ratify, the entry into force will provide an opportunity to see how the new Protocol will function in practice and to what extent it becomes beneficial in practices to national court procedures and thereby to a an increased embedding of the Convention in national judicial practice.

Meanwhile, Protocol 15, also from 2013, and relating to has not yet entered into force. This Protocol, which requires ratifications of all ECHR State Parties, is still awaiting action from four states: Bosnia and Herzegovina, Greece, Italy, and Spain. It relates mainly to some smaller procedural changes, as well as a heavier emphasis on margin of appreciation and subsidiarity.

Friday, 6 April 2018

New Book on Human Rights in CoE and EU

My Utrecht University colleague Janneke Gerards, together with Steven Greer and Rose Slowe of the University of Bristol, have just published a new book with Cambridge University Press, entitled Human Rights in the Council of Europe and the European Union. Achievements, Trends and Challenges. This is the abstract:

'Confusion about the differences between the Council of Europe (the parent body of the European Court of Human Rights) and the European Union is commonplace amongst the general public. It even affects some lawyers, jurists, social scientists and students. This book will enable the reader to distinguish clearly between those human rights norms which originate in the Council of Europe and those which derive from the EU, vital for anyone interested in human rights in Europe and in the UK as it prepares to leave the EU. The main achievements of relevant institutions include securing minimum standards across the continent as they deal with increasing expansion, complexity, multidimensionality, and interpenetration of their human rights activities. The authors also identify the central challenges, particularly for the UK in the post-Brexit era where the components of each system need to be carefully distinguished and disentangled.'

Congrats to the authors!

Tuesday, 27 March 2018

Book Review on Russia and the ECHR

It is my pleasure to introduce a guest post by Joyce Man, former legal intern at the European Human Rights Advocacy Centre (EHRAC), reviewing the book Russia and the European Court of Human Rights - The Strasbourg Effect by Mälksoo and Benedek: 


Book review: Russia and the European Court of Human Rights: The Strasbourg Effect (Cambridge University Press 2018) Lauri Mälksoo and Wolfgang Benedek (eds.)

Discussions on Russia’s membership of the European Convention on Human Rights (ECHR) easily turn to its weaknesses. A new book, which examines whether the Convention has fostered human rights protection in Russia, raises significant reasons for concern, particularly in light of developments in the past three years. Nevertheless, some authors point to the positive influence of the European Court of Human Rights (ECtHR) on Russia, and vice versa. In spite of continuing tensions in their turbulent relationship, they manage to find a sliver of optimism.

Russia and the European Court of Human Rights (Cambridge University Press 2018) brings together fifteen practitioners and academics with expertise in human rights in Russia, who each reflect on developments on the twentieth anniversary of Russia’s accession to the ECHR. Drawing from their experiences in and out of the courtroom, as well as from sociological and historiographical perspectives, they paint a picture of a relationship which, while at times strained, has also been dynamic and positive.

The book comes at a time of deep scepticism and introspection about Russia’s commitment to the European human rights regime, and as a tense confrontation ensues among the Russian Duma, the Russian Constitutional Court (RCC), and the ECtHR about the supremacy of the Convention vis-à-vis the Russian Constitution. Russia also suspended payments to the Council of Europe (PACE) after its voting rights in the Parliamentary Assembly  were suspended following the its annexation of Crimea, adding to the tension. 

The saga began with the ECtHR’s 2014 decision awarding Yukos shareholders an unprecedented $1.86 billion for the state’s violation of the oil company’s right to fair trial in the state’s protracted tax evasion probe, which prompted Duma deputies to challenge the constitutionality of Russia’s ratification of the ECHR. In 2015, the RCC declined to rule the ratification unconstitutional. This led the Duma to legislate new powers for the RCC to declare ECtHR judgments impossible to implement. In 2016, the RCC deployed these powers in Anchugov and Gadkov, a case concerning prisoner voting rights, to find the ECtHR ruling in that case unenforceable. The confrontation continued on in 2017, with the RCC ruling the ECtHR’s Yukos award unenforceable. As the book went to print, tensions remained at an all-time high.

Russia and the European Court of Human Rights therefore provides a timely reflection and opportunity for stock-taking. From the very beginning of Russia’s membership of the Council of Europe (CoE) in 1998, human rights advocates have pinned great hopes on it for cultivating robust rights protections not only in Russia, but the former-Soviet region as a whole. The events of the past few years has thrown these hopes into doubt. However, as several authors show, the relationship between Moscow and Strasbourg was not always this confrontational.

In one contribution focusing on violations in Chechnya, Philip Leach, director of the European Human Rights Advocacy Centre (EHRAC), highlights cases which confirmed the practice of torture, deaths in custody, enforced disappearances, extrajudicial executions, deaths caused by aerial bombardment, artillery shelling, and armed attacks in Russia. They include EHRAC’s first successful cases, such as Khashiyev and Akayeva, concerning torture and extradjudicial execution in Grozny; Isayeva, on the indiscriminate bombing of civilians in Katyr-Yurt in 2000; and later, cases regarding redress for other victims in that attack in Abuyeva and ors and the need to address impunity in Abakarova. While ultimately compliance has been weak, these cases proved violations in an environment of impunity, and attested to the persistence of the claimants, their representatives and the Court – an achievement in itself.

The examples from EHRAC’s work also reveal the development of successful case law which could have implications for future litigation. They include those relating to the indiscriminate aerial bombing in Kogi village near Dagestan (Esmukhambetov and ors v Russia) and serious flaws in the authorities’ use of weaponry in Beslan school hostage-taking of 2004 (Tagayeva and ors v Russia).

A key area of success has been in property rights. As Vladislav Starzhenetskiy notes, following the disintegration of the Soviet Union, private parties were unable to enforce court orders for the state to perform obligations such as providing transport services, social welfare, and state-funded accommodation. The successful case of Burdov at the ECtHR led the authorities to spend over a decade reforming the enforcement mechanism and to find a solution. Similarly, ECtHR cases prompted the state to resolve the longstanding non-settlement of Soviet commodity bonds and to enact federal legislation for payment in exchange (Malysh and ors); to introduce stricter rules on extraordinary review procedures, which had undermined judgment debts (Panasenko); to amend counter-terrorism measures involving the destruction or damage of property (Gubiyev); and to improve property rights interferences in the course of criminal proceedings (Novikov).

Strasbourg case law has been used in Russia’s courts, as noted by Sergey Marochkin. To be sure, the RCC has taken a confrontational stance against Strasbourg since it ruled in July 2015 that it could determine the enforceability of ECtHR judgments. However, prior to that, the Constitutional Court had regularly quoted ECtHR judgments, referenced them for justification it its own reasoning, made persistent statements in support of observing its decisions, and for the most part, recognised them.

Interactions with Russia has also positively impacted the Strasbourg system, as Elisabet Fura and Rait Maruste observe. Cases involving Russia led, for example, to the creation of the European Prison Rules (Kalashnikov) and the further development of case law on discrimination (Markin). They highlighted the lack of legal assistance, a problem in many member states (Mikhaylova), and prompted debate on the right not to be tried twice for tax breaches, under administrative and criminal law, in Finland and Sweden (Zolotukhin). Even unsuccessful cases had positive impacts, such as the rare standalone application of Article 38 in Janowiec and ors v Russia regarding the Katyn massacre. As the authors note, this is the only known case where the Court has found a violation of Article 38 on its own; previously it was always in conjunction with Articles 2 or 3.

While the past two decades have been largely optimistic, more recent developments have thrown observers’ evaluations of the Russia-Strasbourg dynamic into doubt, writes Bill Bowring. The RCC’s decision on the ECtHR’s Yukos judgment and Anchugov and Gladkov have caused most of the writers to question Russia’s future engagement with Strasbourg. Russia’s record on LGBT rights and in Chechnya have worsened, and the country has adopted an increasingly nativist approach. Anton Burkov observes pessimistically that domestic courts often do not apply Strasbourg case law, not for a lack of knowledge or high case load, but more worryingly, a lack of motivation, political will and freedom.

For these reasons, Wolfgang Benedek, in summary, concludes that while socialisation through the ECHR system did have an impact, it slowed after 2007, and today, ‘the Strasbourg effect is dwindling’. The growing list of confrontational judgments is cause of ‘serious concern and undermines the socialisation process’.

All this begs the question of expectations and calls for reflections about what was possible given the complexities that Russia faced after the fall of the Soviet Union. From the perspective of the representatives who had a hand in bringing about Russia’s membership, the road was never going to be smooth. Stepping back to reflect on the historical trajectory, Petra Roter reminds us that the Committee on Legal Affairs and Human Rights had acknowledged that Russia had not yet met the requirements of membership at the time of its entry. However, it believed that membership would create conditions of conformity, based on the idea that it was better to have Russia in than out. The long view shows that relations with the Council of Europe, while ‘troubled’, have been ‘notable’, and that Russia has participated meaningfully in many bodies and made an impact through its committed and skilled representatives. Likewise, Mikhail Antonov questions whether expectations were unrealistic to begin with; transplantation was always bound to be difficult. He is not so pessimistic about Russia’s interaction with the ECHR.

As the book went to print not long after the Yukos and Anchugov developments, most of the writers have refrained from concluding the worst, hoping – based on the positive experiences over a period of two decades – that the relationship can yet change.

Since the book’s publication, reports suggesting Russia may withdraw from the ECHR have persisted. Yet there are still ample reasons to believe that the relationship can weather the storm. First, officials have denied that withdrawal is on the agenda (including Federation Council speaker Valentina Matyienko in December 2017 and Duma vice-speaker Pyotr Tolstoy in March 2018). Second, leaving the ECHR is no mean feat, as demonstrated by the debate surrounding the UK’s own attempt to withdraw. It requires unravelling decades of intertwined jurisprudence and raises wider and deeper questions regarding treaty validity and compliance – in a nod to that point, the Russian Consitutional Court itself discussed the implications with regards the Vienna Convention on the Law of Treaties in the 2015 judgment (at page 14) and recent Anchugov and Gadkov ruling (paras 74-77). Finally, and perhaps most importantly, it should be noted that whatever the difference between Moscow and Strasbourg, Russia can still see the utility of the ECHR. As stated by Tolstoy, the Duma vice-speaker, they ‘consider it important to preserve a common legal space in Europe’. This leads the discussion back to the reason for the relationship in the first place. Twenty years ago, Russia found reason to join the ECHR. These included prestige, investment, the projection of an image as a rule-of-law abiding, ‘civilised state’, as noted by Lauri Mälksoo in the book. Perhaps idealistically, a desire to improve human rights protections could be added. Regardless what one thinks of those reasons, twenty years later, many of them continue to hold. The question is which ones, and for how long.  

Thursday, 8 March 2018

New ECHR Readings

Please find here a selection of recent academic writings on the European Convention on Human Rights and its Court:

* Elisabeth Lambert Abdelgawad, 'The practise of the European Court of Human Rights when striking out applications, Netherlands Quarterly of Human Rights, vol 36, no. 1 (2018):

'This article analyses how the European Court of Human Rights has applied Article 37 of the European Convention on Human Rights that gives it the power to strike out pending cases in the current context of an overwhelmed Court by individual applications. This article shows that the Court’s interpretation of Article 37, while being casuistic and pragmatic, has evolved along the principles of subsidiarity and procedural justice and that the Court has used its discretion, notably to end cases regarding the expulsion of migrants. Yet this tool has not been a way of disposing repetitive applications which account for half of the pending cases.'

* The seminar report of the 'The Evolving Remedial Practice of the European Court of Human Rights' held in Strasbourg', which was held in Strasbourg in November 2017, is now published online:

'How far can - and should - the European Court of Human Rights (ECtHR) recommend or even require states to take certain measures after the finding of a violation of the European Convention of Human Rights (ECHR)? How do different actors, both at the Council of Europe and national level, perceive the opportunities and risks of the Court being more specific or prescriptive on the prospects for success of implementation of its judgments?'


'Das Buch untersucht mit der Margin of Appreciation eine der bekanntesten und doch umstrittensten Rechtsfiguren der Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte.Es entwickelt eine schlüssige Kritik ihrer bisherigen dogmatischen Fassung und zugleich einen praktisch anschlussfähigen Vorschlag für eine Neuaufstellung der überkommenen Doktrin. Bestehende kritische Ansätze des bisherigen Schrifttums werden aufgearbeitet, weiterentwickelt und mit besonderer Konsequenz angewandt.Die Autorin wählt dabei einen methodischen Zugriff auf mittlerer Abstraktionshöhe, der es ermöglicht, sowohl die konkrete Rechtsprechungspraxis zu berücksichtigen, als diese auch mit abstrakten, vornehmlich demokratietheoretischen Einwänden zu konfrontieren. Durch eine radikale Reduktion derjenigen Faktoren, die nach überkommener Auffassung für Übung und Umfang richterlicher Zurückhaltung maßgeblich sind, wird die Margin of Appreciation im Ergebnis entschieden verschlankt und rationalisiert.'

Saturday, 3 March 2018

The Draft Copenhagen Declaration - Comment Series VI

We close this week's guest commentaries on the draft Copenhagen Declaration with the contribution of Sarah Lambrecht, one of the editors of the series. I thank both her and co-editor Janneke Gerards for this important initiative!

Undue political pressure is not dialogue: The draft Copenhagen Declaration and its potential repercussions on the Court’s independence

Sarah Lambrecht, researcher, Research Group Government and Law, UAntwerp and law clerk at the Belgian Constitutional Court (1)

The Danish Government wishes to initiate a renewed discussion on the future of the European Convention on Human Rights system, as one of its priorities of the Danish Chairmanship of the Committee of Ministers of the Council of Europe from November 2017 till May 2018. Before issuing its draft Copenhagen Declaration on 5 February 2018, the Danish Government hosted a High-Level Expert Symposium ‘The Future of the European Court of Human Rights – Time for a Renewed Discussion?’ on 20-21 April 2017 at Copenhagen, at which I participated, and a High-Level Expert Conference ‘2019 and Beyond – Taking Stock and Moving Forward from the Interlaken Process’ on 22-24 November 2017 at Kokkedal. This process has been particularly transparent, a stark contrast from previous efforts, for which the Danish Government should be commended.

Danish Government’s proposal to ‘rebalance’ the Convention system and enhance the position of States Parties

One of the key issues presented for discussion by the Danish Government is the need for ‘rebalancing’ the power between the States Parties and the European Court of Human Rights (the Court) by adjusting existing mechanisms and possibly introducing additional ‘checks’ on the Court. Several of these initial ideas have been cast in the draft Declaration published by the Danish Government, particularly, but not exclusively, in the section ‘Interplay between national and European levels – the need for dialogue and participation’. 

Four ways for States Parties to have a ‘stronger interplay’ with the Court are suggested by the draft text: (1) States Parties should be able to indicate their support for the referral of a Chamber case to the Grand Chamber (paras.  35 and 38), (2) States Parties should increase their third party interventions, especially in important and principled cases before the Grand Chamber  (paras. 34 and 39-40), (3) States Parties should discuss the general development of areas of the Court’s case law of particular interest to them and, if appropriate, adopt texts expressing their general views (paras. 32-33 and 41), (4) States Parties should hold a series of informal meetings to discuss relevant developments in the jurisprudence of the Court (para. 42).

With the exception of the call on States Parties to intervene more often, these are new mechanisms that aim to enhance the position of States Parties in the Convention system. Presented as a way to improve dialogue and participation, these proposals go in fact much further. As in any judicial system, enhancing the position of one of the actors, in this case (the executive branch of) the States party to the Convention, can have a significant impact on the system as a whole. Such a step should not be taken lightly. In past reforms of the Convention system, the focus has been primarily on enhancing the position of the individual applicant seeking redress for a rights violation by a State Party. In more recent years, several reforms or initiatives have aimed at establishing a more structured and effective dialogue between the Court and national courts. The value of such a dialogue was underscored in both the Brighton and Brussels Declaration, and it was given further shape, amongst others, in Protocol No. 16. When this Protocol comes into effect, the highest courts and tribunals of the ratifying States Parties can request the Court to give advisory opinions on question of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or its Protocols. In 2015, the Court also created a Superior Courts Network to enrich dialogue and the implementation of the Convention by creating a practical and useful means of exchanging relevant information, with the national superior courts, on Convention case law and related matters. 

Although the draft Declaration does reaffirm the States Parties’ strong attachment to the right of individual application to the Court as a cornerstone of the Convention system (para. 1), as well as welcomes the coming into effect of Protocol No. 16 and the Court’s creation of the Superior Courts Network (para. 37), the objective of the Danish Government is evidently more far-reaching, and in some regards of a different nature. In its opinion on the draft Declaration, the Court justly signals that ‘dialogue within the Convention system is underlined in the draft text, although in a broader sense and with a different emphasis than in the past’ (para. 15). Tellingly, the Court subsequently underlines ‘that in relation to the development of its case law, the appropriate mechanisms for dialogue take the form of domestic court decisions and third party interventions before the Court’ (para. 16).

States Parties support for the referral of a Chamber case to the Grand Chamber

A way envisaged early on by the Danish Government to strengthen the position of States Parties, is to allow States Parties to demand or at least indicate their support for the referral of a Chamber case to the Grand Chamber. This would create an institutionalized mechanism whereby States Parties would be able to challenge specific Chamber judgments. Rather than proposing a new Protocol, the Danish Government in its draft Declaration ‘invites the Court to adapt its procedures so that other States Parties may indicate their support for the referral of a Chamber case to the Grand Chamber, and to take such support into account when determining whether the conditions of Article 43(2) of the Convention have been met’ (para. 38).

The procedure for referral to the Grand Chamber, as defined in Article 43 of the Convention, is the result of a compromise codified in Protocol No. 11 between the States that emphasized the need for a single Court and those that favored a two-tier system. In order to ensure the quality and consistency of the Court’s case law, the Grand Chamber, at the request of one of the parties to the case and in exceptional cases, is competent to re-examine a case if the case raises serious questions concerning the interpretation or application of the Convention or its Protocols, or if the case raises a serious issue of general importance. The intention is that these conditions are applied in a strict sense. A panel of five judges of the Grand Chamber decides on whether a case is to be accepted for re-examination.

Article 43 of the Convention therefore does not provide for the specific mechanism suggested by the Danish Government. One can question whether it is appropriate to ‘invite’ the Court to alter its own procedures, especially when this initiative does not stem from a request by the Court, nor receives its clear support. Regardless, under no circumstances should such a mechanism be adopted without first thoroughly examining its potential effects on the functioning of the Convention system as a whole. It is not far-fetched to imagine that this mechanism could be used as a tool to politicize the procedure for referral to the Grand Chamber and to exert pressure on the Court to reverse certain Chamber judgments. Such a mechanism might be used by a group of States Parties to systematically challenge certain types of Chamber judgments, particularly those that are politically unwelcome. This could have negative repercussions on the Court’s independence. Particularly striking in this regard is that the draft text proposes that only other States Parties would be able to indicate their support for the referral of a Chamber case to the Grand Chamber. A clear choice was made to not include any other stakeholders, such as individual applicants that have similar cases pending before the Court or potential third party interveners. Solely the procedural position of the States Parties would thus be enhanced. While negotiating the shape and content of the final Copenhagen Declaration, the States Parties therefore need to carefully consider whether they wish to institutionalize such an unbalanced ‘semi-appeal’ mechanism, even if it is more moderately worded than previously circulating ideas. 

Moreover, the draft Declaration justly stresses that the Court’s caseload continues to give cause for serious concern (para. 43). It even cites an updated analysis of the caseload challenge, which concludes that ‘the Court has the capacity to deliver judgments in a maximum of 2.000 substantive (Chamber and Grand Chamber) cases per year’, while the ‘number of pending cases vastly outnumbers that’ (para. 44). In addition, there is ‘the major influx of cases seen in recent years due to the situation in some States’ (ibid.). No supplementary resources are, however, foreseen for the additional workload the proposed mechanism would entail. 

This of course does not mean that States Parties have no means available to make their views heard on certain developments in the case law. As indicated by the Court in its opinion on the draft Declaration, the mechanism of third party interventions before the Court ‘can be relevant to different stages in the examination of a case by the Court, including the admissibility stage, the stage of seeking referral of a case under Article 43 of the Convention, and ultimately that of the Grand Chamber’s consideration of the case’ (para. 16). In this series, Lize Glas demonstrates that despite the fact that third party interventions allow States Parties to directly engage in a dialogue with the Court, States Parties barely make use of this unique possibility.   

States Parties discussing the general development of the Court’s case law and adopting texts expressing their general views

The draft Declaration published by the Danish Government also ‘encourages States Parties to discuss the general development of areas of the Court’s case law of particular interest to them and, if appropriate, adopt texts expressing their general views.’ ‘Such discussions, as well as possible texts adopted’, the draft Declaration continues, ‘may be useful for the Court as means of better understanding the views and positions of States Parties’ (para. 41). In addition, ‘in continuation of the 2017 High-Level Expert Conference in Kokkedal, as a pilot project, […] a series of informal meetings of States Parties before the end of 2019’ should be held, ‘where relevant developments in the jurisprudence of the Court can be discussed, with input of other relevant actors’. These meetings would be organized and hosted by the Danish Chairmanship (para. 42). 

The draft Declaration remains very vague about important specifics of these proposals. In what framework would these discussions by States Parties on the general development of areas of the Court’s case law take place? What would be the nature, the form and the legal basis of the adopted texts expressing their general views? By which procedure would these texts be adopted? None of this is clarified. Therefore, it is very difficult to fully assess the implications of such proposals, which evidently go further than the ‘appropriate mechanisms for dialogue’ identified by the Court in its opinion on the draft text (para. 16). This is particularly worrisome because it is clear that these proposals could have severe repercussions on the Court’s independence. Simply adding that ‘such discussions should respect the independence of the Court’ (para. 41), hardly suffices.

One can merely speculate as to whether the aim of the Danish proposal is to expand the role of the Committee of Ministers, or rather to create another type of forum for discussions by the States Parties. Perhaps the proposals are an allusion to a highly controversial suggestion made by some critics of the Court’s interpretation of the Convention (note 2).  They propose that agreements between States Parties should be made in the framework of the Committee of Ministers regarding the interpretation of the Convention or the application of its provisions. Basing themselves on Article 31(3) of the Vienna Convention on the Law of Treaties, these agreements would then need to be taken into account or simply followed by the Court. Such a reform seems entirely incompatible with the Convention system’s purpose and the Court’s mandate as defined in Articles 19 and 32 of the Convention as well as its independence.

Regardless of whether such discussions and the adoption of texts would take place in the framework of the Committee of Ministers or be organized outside of the traditional bodies of the Council of Europe, it is not difficult to see how this is not an appropriate mechanism for (enhanced) dialogue. Instead, it is a potentially dangerous tool to exert undue political pressure on the Court by the very actors that are subject to its supervision. Important to emphasize is that the European Court of Human Rights is a court first and foremost. For the Court to perform its supervisory role properly, and provide effective protection of fundamental rights of individuals, the Court’s independence needs to be secured. One of the reasons why ‘the Convention system has made an extraordinary contribution to the protection and promotion of human rights and the rule of law in Europe since its establishment’ and that ‘today it plays a central role in maintaining democratic security and improving good governance across the Continent’ (para. 2), is precisely because the States Parties ensured the Court could operate in full independence. 

Again, this does not mean that States Parties have no means available to increase their dialogue with the Court and to enhance their influence on the development of the Court’s case law. In fact, as mentioned, the draft Declaration already points to an existing, underused mechanism: third party interventions before the Court (paras. 34 and 39-40). In its opinion on the draft Declaration, the Court also notes ‘that this mechanism of engagement by States with the Court’s judicial function does not appear to be used to its fullest potential and that, once Protocol No. 16 has entered into force, this mechanism may become even more significant’ (para. 16). As cited above, the Court underlines that in relation to the development of its case law, third party interventions before the Court as well as domestic courts decisions are the appropriate mechanisms for dialogue (ibid.). Moreover, one must not lose sight of the fact that it is the States Parties who select and elect the judges of the Court that interpret the Convention. It is their responsibility to improve this process (paras. 63-69) and ‘to ensure that the judges of the Court enjoy the highest authority in national and international law’ (para. 62).

Conclusion

The draft Declaration issued by the Danish Government primarily aims to strengthen the position of the States Parties in the Convention system. If not fundamentally altered, this will most likely have an impact on the other stakeholders, in particular the individuals that claim to be the victim of a rights violation by a State Party. In contrast to the Brussels Declaration and even the Brighton Declaration, the overall emphasis has moved away from the urgent matter of better national implementation of Convention rights and the execution of judgments, as already mentioned in the opening contribution of this series. Especially at a time when there is a clear regression of the rule of law in several States Parties, the lack of a strong agenda on this issue is highly problematic. This should be rectified in the final Declaration.

It is doubtful, in contrast to what the draft Declaration implies, that the above-discussed new proposals will create the setting for ‘a well-functioning interplay between the national and European levels’ (para. 31). Hopefully, the States Parties will take their time to carefully analyze the proposals set forth by the Danish Government, and their potential repercussions on the Court’s independence. To end with a positive note, one proposal in the draft text that could prove to be a mutually beneficial mechanism for dialogue, if used properly, are increased interventions by States Parties. They could also function as an appropriate means to channel potential tensions between the Court and States Parties. Rather than introducing new and highly contentious mechanisms, the High Level Conference in Copenhagen could be an occasion to highlight the proper ways for States Parties to engage via third party interventions with the Court and to elaborate on how it could be further utilized to enhance dialogue between States Parties and the Court. 

Note 1:  Please note that the views expressed here are personal to the author.
Note 2: See e.g. T Zwart, ‘Een steviger opstelling tegenover het Europees Hof voor de rechten van de Mens bevordert de Rechtsstaat [A stronger position against the European Court of Human Rights advances the Rule of Law]’, Nederlands Juristenblad (2011) 415, 417; K Dijkhoff and S Blok, ‘Leg het Europees Hof aan banden [Curtail the European Court]’ De Volkskrant (7 April 2011);  C Maas, ‘International law as instrument or objective in itself? Case study: juridification and the European Convention on Human Rights’ in: C Maas (ed), Juridification in Europe: The balance of powers under pressure? (European Liberal Forum 2012), available on , (97) 105. 

This blog comment was posted earlier on the Strasbourg Observers blog. 

Friday, 2 March 2018

The Draft Copenhagen Declaration - Comment Series V

In this fifth episode, I am adding my own comments to the discussion on the draft Copenhagen Declaration, focusing on the role of civil society organizations.

The Draft Copenhagen Declaration - What About Civil Society?

Antoine Buyse, professor of human rights from a multidisciplinary perspective, Utrecht University, the Netherlands

The very existence of this critical comment series on the draft Copenhagen Declaration of the Danish chairmanship of the Council of Europe shows that the recent publication of the draft was enough to elicit a stream of responses. This possibility for open discussion is to be applauded and certainly a big improvement over the earlier discussion surrounding the Brighton Declaration of 2012, over which debate was only possible after the text was leaked. Indeed the intensity and concerns palpable in the current responses show that the contents of the draft are not warmly welcomed by everyone. Some very esteemed colleagues, with supporting reasoning, even relegate the whole draft back to the drawing board.

Is there then something rotten in the Kingdom of Denmark, as the palace guard in Hamlet would have it? Or is the current online debate on blogs just a more public reflection of the diplomatic debates behind closed doors which have been ongoing for several months now among Council of Europe member states? One clear advantage of this relatively open phase is that civil society can more easily chip in. This comment focuses on the role  and arguments of civil society in the run-up to the high-level conference in Copenhagen in April

As Janneke Gerards and Sarah Lambrecht noted in their opening contribution of this series of comments, the earlier declarations of Interlaken, Izmir, Brighton and Brussels all expressed support for the Convention system, but to different degrees. The differences, not only in the texts themselves, but also in the underlying intentions and purposes, are precisely what matters here. While the high caseload for the Court and the changing attitudes towards its work may both have triggered the flurry of reform activity leading to no less than four (and the fifth, Copenhagen one, upcoming) declarations in this decade alone, it is their tone and political context that are the keys to understanding them.

Indeed, domestic discussions within the ECHR State Party chairing the Committee of Ministers of the Council of Europe at the time of a particular declaration heavily influence both timing and content. Denmark is no exception, as Jacques Hartman explained earlier in a comment, also noting the sometimes very large discursive influence a single judgment can have on domestic debates. In that sense, keen observers of the Strasbourg system were not surprised that the draft Brighton Declaration in the past and the draft Copenhagen Declaration currently, emanating as they do from relatively ‘Strasbourg-sceptic’ governments – elicit rather critical responses and concerns from academics, civil society and more ‘Strasbourg-friendly’ state parties.

Civil society involvement

Notably, the Danish chairmanship openly called for civil society involvement. Its short document on priorities mentions civil society no less than five times, including when it calls for “strengthened dialogue on developments in the Court’s jurisprudence; a dialogue in which civil society should also play a key role.” If we see the draft Copenhagen Declaration as a kick-off by the Danish government, then civil society certainly seized the ball. But maybe not in the direction the Danes were hoping for. Indeed, six non-governmental organisations that were invited to participate in the November 2017 Kokkedal expert conference of the Danish government soon after issued a statement that breathes an air of concern. The statement expressed regret that the discussions once again focused on “the functioning and methods of the Court rather than on meeting existing legal and political commitments on national implementation.” It also a cautioned against interpretations of “enhanced dialogue” (a term of the Danish chairmanship that somewhat unluckily echoes that other infamous use of “enhanced” in international law, in the context of interrogations in the fight against terror) that would hamper the European Court’s independence.

The six, amongst them Amnesty International and the International Commission of Jurists, were joined by two additional civil society organisations when issuing their recent “Joint NGO Response to the Draft Copenhagen Declaration”. The response could be summarized in two main points: the draft Declaration is imprecise in its analysis and description of the situation and it targets the wrong problem.

Tone and target

As to the imprecisions, the reaction of the NGOs almost reads as that of an all-knowing headmaster correcting its stubborn, shoddy student – and very often for good reasons. The text of the response is full of criticism of the draft Declaration for mischaracterizing processes, overstating issues, undermining the Court and creating confusion (e.g. between the notion of subsidiarity and the margin of appreciation). From a sociology-of-law perspective, this may be explained by the fact that several of the leading figures in these NGOs are also some of the best academic experts on the Convention system. They justifiably demand from the diplomats and civil servants who wrote the text to at least get their facts right and to be intellectually candid. At the same time, the lack of precision and coherence in the Draft could be explained by the fact that the text is already a compromise in the making within the Danish government and influenced by earlier diplomatic demarches of several other state parties. Nevertheless, the NGOs have a point. A large part of their response is, as a result, moulded in the form of very specific textual suggestions to improve the text. How very different is this openly critical and correcting tone from the more subdued, diplomatic wording of the European Court’s own reaction to the draft, which is worded more as a gentle but critical reminder of the Court’s own case-law and a kind demand for clarification of some of the more far-reaching ideas before they can be analysed. To each their own role and tone, and rightly so.

As to the targeting of the key problem at stake, the NGO response argues that the while the draft Copenhagen Declaration acknowledges that national implementation of the ECHR is important, the emphasis seems to be on what could be improved in Strasbourg rather than at home. And that very emphasis, in the NGOs’ view is putting too much attention to a less urgent problem. Much progress in efficiency and quality has been made within the Court. It is the persistent and systemic problems within states that call for attention, including the lack of timely and full implementation of Strasbourg judgments. Indeed, much of the draft Declaration talks about a better “balance” between the European and national levels. The underlying thought seems to be that the Court needs to give more room to national sovereignty – the draft talks of the importance of “constitutional traditions” and “national circumstances”. The Court should be recalibrated in a new balance of power, the draft seems to say.

By contrast, the NGOs argue that the new balance should be rather one of taking responsibility – the Court is doing what it can, the states themselves should take the Convention norms more seriously. Here, the problem analysis of the situation by civil society organisations in the response is in line with what the Parliamentary Assembly of the Council of Europe has been highlighting year after year: national implementation of the Convention is the key problem. And this should be done across the board. Rather than weakening or taking away jurisdiction of the Court on matters of asylum or international armed conflicts in order to make the Court’s caseload more workable, the influx of cases should be reduced by addressing problems at the national level. To put it differently: improving protection for human rights victims and preventing violations, rather than sounding the Strasbourg alarm bell for only some problems and not for others.

If indeed, as the NGO response argues, more emphasis should be put on national implementation of Convention norms, then the role of civil society should be strengthened, to begin with in the wording of the draft Declaration. The organizations behind the response call for the development of more effective implementation by engaging civil society. The concern in the response about the role of civil society at the national level, within states, is not just one of principle. It is also very much a practical challenge: in many countries across the globe, including within Europe, civic space is under heavy pressure and the work of civil society is made increasingly difficult. This in turn affects the room for manoeuver NGOs have to help victims of alleged human rights violations to lodge applications in Strasbourg. An important signal would thus be to include in the Copenhagen Declaration the crucial role of civil society in human rights protection and promotion at the national level and the need for an enabling environment for their work.

Civil society in Strasbourg

The response also addresses the role of civil society itself in Strasbourg. Here the main point the NGOs make is that the Court’s independence should be protected and bolstered above all. Political influencing by states – under the cloak of “dialogue” – is anathema. State interventions in the Court’s work should be entirely limited to existing procedures, whether in their role as defendant states in a particular case or as third party intervener. If more possibilities for states are created for states to give input in proceedings, then the same should be possible for others, including civil society, the NGOs argue. The NGOs note a point that is also to be found in the Court’s own reaction to the Copenhagen draft: these is a lot of room for third party interventions already. As the Court, again diplomatically, states in its opinion, this option “does not appear to be used to its fullest potential” (para. 16).

As to another element of the procedures in Strasbourg, as Lize Glas noted in one of the earlier comments in this series, in the context of decisions of referral to the Grand Chamber, it would make sense to open the door for involvement of civil society and not limit it to states. Again, this would follow from the overall professed logic of the Danish chairmanship of giving a key role to civil society. A matter of putting your money – or in this case, political commitment and action – where your mouth is.

Conclusion

The input of civil society in the current debates deserves to be taken very seriously. Not only because this input reflects the explicit goal of the Danish chairmanship to involve civil society, but also because civil society organisations are key players in the Convention system. All of the organisations behind the joint NGO response are very active in Strasbourg, whether it is in strategic litigation (EHRAC) or in implementation of judgments (EIN). And, of course, these international NGOs also voice concerns of a much wider circle of civil society actors. It is after all domestic human rights organisations that may themselves become victims of violations when trying to help individual victims or when being “social watchdogs”, as the European Court itself has put it, to hold authorities to account.

The response in the dialogue in Hamlet to the famous phrase about rottenness in Denmark is that “heaven will direct it”. In the current context, in a rather more mundane version, it may not be heaven but the chorus of voices on earth being crucial. The current series hopes to add some useful notes to those voices.

This blog comment was posted earlier on the Strasbourg Observers blog.