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Monday, June 18, 2012

Follow-up to Brighton conference on future of the ECHR

Follow-up to Brighton conference on future of the ECHR

Dear colleagues,

We write to thank you for your support in the lead-up to the Brighton Conference earlier this year. The joint statement on reform of the European Convention on Human Rights had a strong impact on delegations, such that many of the measures in the final version of the Brighton Declaration were considerably improved from the initial draft. However, some proposals that would have assisted applicants, such as giving the Committee of Minsters the power to order sanctions against Member States for failing to implement judgments, were dropped during the negotiations. Highlights include the following:
· National implementation. As approved, the declaration affirmed “the strong commitment of the States Parties to fulfill their primary responsibility to implement the Convention at national level” (para. 9 a); called for the establishment of independent national human rights institutions where they don’t already exist (para. 9 c) and encouraged states to translate ECHR judgments into national languages (para. 9 d) and make full use of Council of Europe technical assistance (para. 9 e).

· Subsidiarity and margin of appreciation. The declaration called for an amendment to the Convention to include in the preamble a “reference” to the concepts of the margin of appreciation and subsidiarity, without defining them, as guiding principles for the Court in its task of interpreting and applying the Convention. We opposed the inclusion of principles of judicial interpretation in the Convention. The actual effect of this change will depend on the use that the Court will make of the “reference” to these principles.

· Advisory opinions. The Committee of Ministers is asked to draft an optional protocol on advisory opinions (para. 12 d). There is still no consensus among member states on the usefulness of advisory opinions.

· Admissibility. The declaration encouraged the Court to take a strict and consistent approach to admissibility if the application has been duly considered by a national court applying the Convention in light of the well-established case law of the Court, unless the application raises a serious question affecting the interpretation or application of the Convention. (para. 15 d). The Court has repeatedly indicated that this is already their practice to reject cases that have been properly reviewed by a domestic court.

· Six month time limit. In addition, the Declaration called for amendment to the Convention to reduce the application deadline after exhausting domestic remedies from 6 to 4 months. (para. 15 a). We regret this amendment as the shortened deadline could be harder to respect in cases where applicants are detained or do not have easy access to the Internet.

· Significant Disadvantage. The Court will be permitted to use the “no significant disadvantage” test in holding a case inadmissible, even where it has not been considered by a domestic court (para. 15 c).

· Additional resources. The declaration only foresees the possibility to recruit additional judges. The text simply invites the Committee of Ministers to consider whether more effective measures will be needed.

· Execution of judgments. The Declaration (i) affirmed that “The Committee of Ministers … should ensure that States parties quickly and effectively implement pilot judgments” (para. 27), (ii) encouraged States parties “to develop domestic capacities and mechanisms to ensure the rapid execution of the Court’s judgments” (para. 29(a)(i)) and “to make action plans for the execution of judgments as widely accessible as possible” (para. 29(a)(ii)), and (ii) invited the Committee of Ministers to consider “how to refine its procedures so as to ensure effective supervision of the execution of judgments” (para. 29(c)) and “whether more effective measures are needed in respect of States that fail to implement judgments of the Court in a timely manner.” (para. 29(d)).
Next steps
Going forward, we will continue our advocacy efforts on the future of the ECHR and we would also welcome any ideas and contributions, in particular in two complementary directions:

· National implementation of the Convention. As the Committee of Ministers will review states’ reports on implementation of the Interlaken Declaration, it would be really valuable to get your perspective on the actual level of implementation of the Convention and execution of judgments in your country.

· Further Reform of the Convention System. We are looking into possibilities to better help the Court dealing with its backlog of cases, and also ways in which the procedures before the Committee of Ministers can be improved to improve implementation of the Court’s judgments. This includes greater engagement of civil society.
If you would like to contribute your ideas, please respond to Claire Fernandez,
Yours sincerely,
James A. Goldston
Executive Director
Open Society Justice Initiative
400 West 59th Street
New York, NY 10019
tel: +1 212 548 0118
fax: +1 212 548 4662
twitter: @JamesAGoldston

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