Friday, May 24, 2013

Protocol 15 to the ECHR

On 16 May 2013, the Committee of Ministers of the Council of Europe has adopted Protocol 15 to the European Convention on Human Rights. The Protocol is now open for signature by the Council of Europe member states and will enter into force once all member states have acceded to it.

(Draft) Protocol 15 to the ECHR was drafted following the adoption of the Brighton Declaration. The Brighton Declaration was the result of a number of events – notably three high-level conferences held in Interlaken, Izmir and Brighton – conducted to discuss the challenges facing the Court. Important topics addressed were, inter alia, 

  • the inundation of the Court with applications concerning very similar cases, caused by the reluctance of some member states to undertake structural reforms aimed at ensuring the effective enjoyment of Convention rights;
  • related to this, the duration of proceedings before the ECtHR
  • the quality and consistency of the Court’s jurisdiction and the qualification of the judges elected onto the Court

Protocol 15 is to implement some (but not all) of the measures proposed in the Brighton Declaration to target these problems. While the Brighton Declaration has been criticized for various reasons  (as its alleged failure to address the root causes jeopardizing the European human rights system), the amendments contained in Protocol 15 are widely regarded as ‘technical’ and ‘uncontroversial

The protocol will change some aspects of the procedure before the ECtHR, entrenches the principles of subsidiarity and the 'margin of appreciation doctrine' in the Convention and abolishes the compulsory retirement age of 70 years for judges. 

 - Procedural amendments

Time limit
The protocol contains some amendments to the procedure before the European Court of Human Rights. The time period for submission of applications to the Court is shortened. Currently, applications have to be submitted within 6 months, starting with the date of the last decision on an effective legal remedy. The amending protocol sets out that article 34 of the Convention will changed to the effect that it lays down a time limit of four months.

Rejection due to lack of significant damage
The possibility to reject applications is broadened. Currently, article 35 provides that applications are declared inadmissible, if the applicant has not suffered a significant damage. Yet an exception applies in cases in which domestic courts have not duly considered the case. Protocol  15 abolishes this exception, i.e. even cases which have not been given due consideration on a domestic level may now be rejected as inadmissible if the applicant has not suffered significant damage.

No possibility for the parties to object relinquishment in favor of the Grand Chamber
Article 30 ECHR provides that cases may be relinquished in favor of the Grand Chamber,
  • if the case gives rise to an important question  regarding the interpretation of the Convention orone of its protocols
  • if the Chamber competent for the case is considering to deviate from the jurisdiction of the Court

Currently, this is subject to the condition that none of the parties objects. The amending protocol will abolish this requirement. This amendment will expedite the procedure by removing one procedural step and add to the consistency of the Court’s case law by ensuring referral to the Grand Chamber in case a change of jurisdiction is considered. In line with this change, the Court has announced to change Rule 72 of the Rule of Court, which deals with the relinquishment of jurisdiction.

 - Margin of appreciation and principle of subsidiarity
Protocol 15 will include a reference to the margin of appreciation in article 1 of the Convention. When the suggestion to include this principle expressly in the ECHR was tabled during the discussion preceding the ‘Brighton declaration’ , it met with different kinds of misgivings. Critics – notably from the NGO community - feared that the notion ‘margin of appreciation’ might be misused to dilute the control the Court exercised over member states and give them more room to maneuver. 

The language finally chosen met with approval by the Parliamentary Assembly of the Council of Europe as well as ultimately the Court itself, which stated that

The principle of subsidiarity, is in line with long-standing jurisdiction of the Court. The Court has welcomed the language contained in the Protocol as ‘reflecting the Court’s pronouncement on the principle’.
Change of retirement age

 - Retirement age of judges
The compulsory retirement age of 70 years is abolished and at the same time a new rule introduced that candidates put forward as judges have to be less than 65 years old. In view of the nine years’ term judges are serving, the retirement age is thus 74.

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