January 16 2018

3 steps to save the European Court of Human Rights

On 15 December 2017, Judge Paulo Pinto de Albuquerque spoke to students and staff at Middlesex University about reforming the European Court of Human Rights. Alice Donald and Philip Leach (Middlesex University School of Law) summarise and discuss his principal points.

Judge Pinto de Albuquerque was elected as a judge at the European Court of Human Rights in 2011. Prior to his election, he served as a judge on several different courts in Portugal between 1992 and 2004. Since 2015, he has been Professor Catedrático of Criminal Law at the Law Faculty of the Catholic University of Lisbon.

In his presentation, and in the Q&A which followed, Judge Pinto de Albuquerque discussed a number of the critiques which have been made of the Court by politicians and commentators, who have challenged it for allegedly exceeding its mandate and interfering unjustifiably in domestic democratic decision-making. He described these critiques as based on false premises, while observing that they had brought the Court to ‘rock bottom’.

Judge Pinto de Albuquerque also highlighted the legal uncertainty and abdication of judicial power which in his view has been the result of the trend in the Court’s case law, when it is considering whether a national law violates human rights, to assess the process by which the law was made rather than the substance and impact of the law – and to defer to some national authorities more than others. Judge Pinto de Albuquerque ventured that by engaging in procedural rather than substantive review of the human rights compatibility of national laws, the Court risks creating ‘47 different ways of applying the Convention’, with the consequence that the 47 states of the Council of Europe could end up with highly variable standards of human rights protection. He argued that this puts at risk the basic aspiration to equality before the law, as well as promoting a retrogressive agenda, especially in the field of economic and social rights, regarding the protection of minorities, migrants and the dispossessed in general.

This debate aside, Judge Pinto de Albuquerque made a robust and formidable defence of the Court. Having explained why he considers the Court to be an absolutely essential element in the protection of human rights across Europe, he went on to set out a series of specific reforms – by way of ‘three steps’. He emphasised that his proposals should be viewed in the light of his robust case in support of the critical work which the Court continues to do. This blog concentrates on his specific reform proposals; readers are referred to the relevant Articles of the Convention and Rules of Court.

The three steps advocated by Judge Pinto de Albuquerque were built around the principles of independence, transparency and accountability. Applying these principles, the Judge posited a series of specific recommendations for reform, which are outlined below.

Independence

Judge Pinto de Albuquerque argued that the following steps should be taken in order to strengthen the independence of the Court:

• the rotation of the presidency of the Sections of the Court, as in many Constitutional and Supreme Courts (the Court’s 47 judges being divided into five Sections);
• the adoption of a ‘rule of silence’: that cases should only be discussed by the judges in the court room, and not externally (see Article 21(3) ECHR and Rules 4, 22(1) and 28(2) of the Rules of Court);
• judges should be ineligible to apply for posts within the Registry (which provides legal and administrative support to the Court) for a period of five years after their mandate has ended; an equivalent rule should apply to Registry staff as regards applying for judicial posts at the European Court; and
• judges should also be ineligible to apply for certain state positions for a period of five years after their mandate has ended; an equivalent rule should apply to the holders of those state positions as regards applying for judicial posts at the European Court.

Transparency

Judge Pinto de Albuquerque argued that these reforms should be introduced, so as to improve institutional and substantive transparency:

Institutional transparency

• judge rapporteurs (who are assigned – anonymously – to preside over the processing of each case) should be publicly named, and their appointment should be based on objective, publically available criteria and procedure (see Rules 48-50 of the Rules of Court);
• identify the judges who form the majority and minority in inadmissibility decisions (that is, decisions as to whether applicants meet the Court’s conditions of admissibility so that the merits of their case can proceed to be examined);
• determine the composition of each Chamber (see Article 25(b) ECHR and Rules 25(3) and 26 of the Rules of Court) and each Grand Chamber (see Articles 26(4) & 26(5) ECHR and Rule 24(e) of the Rules of Court) in accordance with objective, publically available criteria and procedure.

Substantive transparency

• provide sufficient (and non-formulaic) reasoning for single judge decisions on inadmissibility and for decisions of the Grand Chamber panels to reject a request for a case to be reheard by the Grand Chamber and publish these decisions with their reasoning (under Article 43(2) ECHR, cases are referred to the Grand Chamber when they raise a serious question affecting the interpretation or application of the Convention or a serious issue of general importance);
• allow for separate opinions in inadmissibility decisions;
• make public all the sources of information relied on by the Court, including that provided by the Jurisconsult (a member of the Registry who advises the Court so as to ensure the quality and consistency of its case law), international and comparative law reports of the Research Division and third party interventions (submissions made by states or organisations that are not party to a case in order to assist the Court in its adjudication) (see Article 36 ECHR and Rule 44 of the Rules of Court). The Court’s default position is that all documents submitted to the Court are public (see Rule 33 of the Rules of Court); however, that is quite different from making documents such as third party interventions available on the Court’s website.

Accountability

The accountability of the Court should be developed by making the following changes:

• judges should have input into recruitment and career progression decisions within the Court Registry (including a right of veto) (see Article 25(e) ECHR);
• the election of judges should involve an intensive public vetting process, without the involvement of the ‘home state’ (for the website of the Committee on the Election of Judges to the European Court of Human Rights, see here);
• there should be full publicity about the ‘off-the-bench’ engagements of judges (including details about travel sponsored by the member states);
• prior to the adoption of the Council of Europe’s budget each year, a detailed annual report should be presented by the Court to the Committee of Ministers and the Parliamentary Assembly of the Council of Europe, with information on past results and future, expected results;
• a ‘situation room’ should be established within the Court to provide internal supervision of the development and follow up to inter-state and pilot judgments (a procedure developed by the Court to respond to structural or systemic violations of the Convention which give rise to multiple applications; see Rule 61 of the Rules of Court) and ‘quasi-pilot judgments’ (in which the Court stipulates individual and/or general measures to remedy structural or systemic violations without invoking the formal pilot judgment procedure). This body would enable the Court to assess the development of these cases and impact of such judgments.
• the member states should be given more input into the adoption of the Rules of Court.

Comment

We are extremely grateful to Judge Pinto de Albuquerque for putting forward such an interesting series of very specific proposals for reform, which has provided much food for thought.

Some of the Judge’s proposals arise in essence from the internal workings of the Court (such as the need to avoid ‘voting blocs’) on which it is rather difficult to comment. Other suggestions, such as the need for a judicial ‘rule of silence’ seem eminently sensible, if they are required.

Long gone are the days when it was quite common for states to put forward former government agents (who represent the state before the Court) for election as judges; however, former state officials of one sort or another are still often put up for election, and we are also aware of the disquiet which has, on rare occasions, been caused by the movement (or the prospect of movement) of individuals from the Registry to the Bench, and vice versa – so a five year ‘restrictive covenant’ could indeed address any risk of perceived lack of independence.

Of the transparency proposals, the stand-out idea is to allow separate judicial opinions in decisions on inadmissibility. No doubt, this would be rarely invoked in practice, but it is suggested that for exceptional cases where critical, new or difficult points of admissibility are being decided, this would be a significant, positive reform which could enhance our understanding of the incremental development of the case-law relating to the admissibility criteria.

In some instances, the Strasbourg judicial election process continues to prove problematic, with lists of judges from certain states being repeatedly rejected – this was the subject of recent scrutiny by the Open Society Justice Initiative and the International Commission of Jurists. The primary problems remain the lack of independence and transparency of the state selection processes; so, Judge Pinto de Albuquerque’s advocacy of limiting the influence of the ‘home state’ is understandable.

Finally, we note the proposal to establish a separate unit within the Court enabling it to track the implementation of pilot judgments and quasi-pilot judgments which focus on structural and systemic human rights violations. This could be an important initiative in assisting the Court in its assessment of the follow up to such cases – especially, for example, in analysing the adequacy (or otherwise) of newly established domestic procedures of redress, created in response to an earlier Strasbourg decision (in this connection see, especially, the recent judgment in Burmych and Others v Ukraine). The potential creation of such a unit would be a logical extension of the Court’s increasing engagement with the implementation of its own judgments and interaction with the Department for the Execution of ECtHR Judgments under the Committee of Ministers, the inter-governmental arm of the Council of Europe, which is formally tasked with monitoring the implementation of judgments. Careful coordination would be required, however, to ensure that any unit established within the Court did not duplicate the work of the Execution Department.

These are our initial thoughts on the interesting range of proposals put forward by Judge Pinto de Albuquerque – please contribute to the debate by commenting below. (And read a parallel debate about reform of the Court of Justice of the European Union here)

Dr Alice Donald and Professor Philip Leach are currently carrying out research on the implementation of human rights judgments, as part of the ESRC-funded Human Rights Law Implementation Project.

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Tags: Alice Donald, ECtHR, EU, Europe, European Convention on Human Rights, european court of human rights, human rights, law, legal, organisations, Philip Leach