Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Protocol 15 of the European Convention on Human Rights and Fundamental Freedoms – reforming the European Court on Human rights

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There is widespread agreement that the European Convention on Human Rights in 1953 was an extremely important development arising out of the horrors of the Second World War. The Convention sought to identify the fundamental human rights which should be protected. The European Court of Human Rights was created to enable both states and individuals to bring cases in which alleged breaches of the Convention could be challenged and adjudicated.

Over the years, the number of states who are members of the Council of Europe has expanded. As more countries have come within the jurisdiction of the court, the numbers of cases coming to the court have increased. This has led to serious problems of delay.

A decade ago, the Court itself made suggestions to improve the ways in which the court works. These were supported in 2012 in the so-called Brighton Declaration. On 1 August 2021, the final results of the work which derived from the Brighton Declaration came into effect, as the last of the 47 countries who are members of the Council ratified Protocol 15.

The primary focus of the Protocol is to devise ways to divert cases from the court which could be dealt with elsewhere. Protocol 15 starts by including the principles of ‘subsidiarity’ and ‘margin of appreciation’ into the text of the Convention.

‘Subsidiarity’ implies that the primary responsibility for ensuring compliance with the Convention should rest with individual states – the Convention and the Court should be subsidiary to the laws and procedures of member states.

The ‘margin of appreciation’ is a doctrine developed by the Court itself which accepts that individual states are on the whole best placed to decide questions relating to Human Rights. The role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State’s margin of appreciation.

The hope is that these changes in the text will encourage individual states to do more, thus reducing pressure on the European Court.

Second, there have been a couple of changes to the rules relating to the admissability of cases which can be brought to the Court. First, any case must henceforth be brought within 4 months from the decision appealed against, rather than the 6 month limit that existed before. In addition, there are detailed rules designed to enable the court to rule as inadmissable cases which have no merit or which have already been decided.

A third change relates to the appointment of judges to the European Court. Until the changes were made, judges were required to stand down when they reached the age of 70. This rule has been replaced by a rule required judges to be appointed before they are 65. This is designed to enable them to complete a full 9 year term – the standard for such appoiontments. It is hoped that this will reduce the turnover of judges and enable the court to retain judicial expertise for longer.

Will these changes make a difference? My own hunch is that they may have a marginal impact but that problems of delay in getting cases before the court will remain.

Further detail is available at https://www.gov.uk/government/news/european-convention-on-human-rights-protocol-comes-into-force. The full text of the amended convention is at https://www.echr.coe.int/Pages/home.aspx?p=basictexts&c where you can click on the link to Protocol 15 and the explanatory memorandum for more information.

Written by lwtmp

September 8, 2021 at 12:03 pm

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