High Level Conference on the Future of the
European Court of Human Rights
The High Level Conference meeting at Brighton on 19 and 20 April 2012 at the initiative of the United Kingdom Chairmanship of the Committee of Ministers of the Council of Europe (“the Conference”) declares as follows:
1. The States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) reaffirm their deep and abiding commitment to the Convention, and to the fulfilment of their obligation under the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention.
2. The States Parties also reaffirm their attachment to the right of individual application to the European Court of Human Rights (“the Court”) as a cornerstone of the system for protecting the rights and freedoms set forth in the Convention. The Court has made an extraordinary contribution to the protection of human rights in Europe for over 50 years.
3. The States Parties and the Court share responsibility for realising the effective implementation of the Convention, underpinned by the fundamental principle of subsidiarity. The Convention was concluded on the basis, inter alia, of the sovereign equality of States. States Parties must respect the rights and freedoms guaranteed by the Convention, and must effectively resolve violations at the national level. The Court acts as a safeguard for violations that have not been remedied at the national level. Where the Court finds a violation, States Parties must abide by the final judgment of the Court.
4. The States Parties and the Court also share responsibility for ensuring the viability of the Convention mechanism. The States Parties are determined to work in partnership with the Court to achieve this, drawing also on the important work of the Committee of Ministers and the Parliamentary Assembly of the Council of Europe as well as the Commissioner for Human Rights and the other institutions and bodies of the Council of Europe, and working in a spirit of co-operation with civil society and National Human Rights Institutions.
5. The High Level Conference at Interlaken (“the Interlaken Conference”) in its Declaration of 19 February 2010 noted with deep concern that the deficit between applications introduced and applications disposed of continued to grow; it considered that this situation caused damage to the effectiveness and credibility of the Convention and its supervisory mechanism and represented a threat to the quality and the consistency of the case law and the authority of the Court. The High Level Conference at Izmir (“the Izmir Conference”) in its Declaration of 27 April 2011 welcomed the concrete progress achieved following the Interlaken Conference. The States Parties are very grateful to the Swiss and Turkish Chairmanships of the Committee of Ministers for having convened these conferences, and to all those who have helped fulfil the action and follow-up plans.
6. The results so far achieved within the framework of Protocol No. 14 are encouraging, particularly as a result of the measures taken by the Court to increase efficiency and address the number of clearly inadmissible applications pending before it. However, the growing number of potentially well-founded applications pending before the Court is a serious problem that causes concern. In light of the current situation of the Convention and the Court, the relevant steps foreseen by the Interlaken and Izmir Conferences must continue to be fully implemented, and the full potential of Protocol No. 14 exploited. However, as noted by the Izmir Conference, Protocol No. 14 alone will not provide a lasting and comprehensive solution to the problems facing the Convention system. Further measures are therefore also needed to ensure that the Convention system remains effective and can continue to protect the rights and freedoms of over 800 million people in Europe.
A. Implementation of the Convention at national level
7. The full implementation of the Convention at national level requires States Parties to take effective measures to prevent violations. All laws and policies should be formulated, and all State officials should discharge their responsibilities, in a way that gives full effect to the Convention. States Parties must also provide means by which remedies may be sought for alleged violations of the Convention. National courts and tribunals should take into account the Convention and the case law of the Court. Collectively, these measures should reduce the number of violations of the Convention. They would also reduce the number of well-founded applications presented to the Court, thereby helping to ease its workload.
8. The Council of Europe plays a crucial role in assisting and encouraging national implementation of the Convention, as part of its wider work in the field of human rights, democracy and the rule of law. The provision of technical assistance upon request to States Parties, whether provided by the Council of Europe or bilaterally by other States Parties, disseminates good practice and raises the standards of human rights observance in Europe. The support given by the Council of Europe should be provided in an efficient manner with reference to defined outcomes, in co-ordination with the wider work of the organisation.
9. The Conference therefore:
a) Affirms the strong commitment of the States Parties to fulfil their primary responsibility to implement the Convention at national level;
b) Strongly encourages the States Parties to continue to take full account of the recommendations of the Committee of Ministers on the implementation of the Convention at national level in their development of legislation, policies and practices to give effect to the Convention;
c) In particular, expresses the determination of the States Parties to ensure effective implementation of the Convention at national level by taking the following specific measures, so far as relevant:
i) Considering the establishment, if they have not already done so, of an independent National Human Rights Institution;
ii) Implementing practical measures to ensure that policies and legislation comply fully with the Convention, including by offering to national parliaments information on the compatibility with the Convention of draft primary legislation proposed by the Government;
iii) Considering the introduction if necessary of new domestic legal remedies, whether of a specific or general nature, for alleged violations of the rights and freedoms under the Convention;
iv) Enabling and encouraging national courts and tribunals to take into account the relevant principles of the Convention, having regard to the case law of the Court, in conducting proceedings and formulating judgments; and in particular enabling litigants, within the appropriate parameters of national judicial procedure but without unnecessary impediments, to draw to the attention of national courts and tribunals any relevant provisions of the Convention and jurisprudence of the Court;
v) Providing public officials with relevant information about the obligations under the Convention; and in particular training officials working in the justice system, responsible for law enforcement, or responsible for the deprivation of a person’s liberty in how to fulfil obligations under the Convention;
vi) Providing appropriate information and training about the Convention in the study, training and professional development of judges, lawyers and prosecutors; and
vii) Providing information on the Convention to potential applicants, particularly about the scope and limits of its protection, the jurisdiction of the Court and the admissibility criteria;
d) Encourages the States Parties, if they have not already done so, to:
i) Ensure that significant judgments of the Court are translated or summarised into national languages where this is necessary for them to be properly taken into account;
ii) Translate the Court’s Practical Guide on Admissibility Criteria into national languages; and
iii) Consider making additional voluntary contributions to the human rights programmes of the Council of Europe or to the Human Rights Trust Fund;
e) Encourages all States Parties to make full use of technical assistance, and to give and receive upon request bilateral technical assistance in a spirit of open co-operation for the full protection of human rights in Europe;
f) Invites the Committee of Ministers:
ii) Further to sub-paragraphs c(iii) and (iv) above, to prepare a guide to good practice in respect of domestic remedies; and
iii) Further to sub-paragraph c(v) above, to prepare a toolkit that States Parties could use to inform their public officials about the State’s obligations under the Convention;
g) Invites the Secretary General to propose to States Parties, through the Committee of Ministers, practical ways to improve:
i) The delivery of the Council of Europe’s technical assistance and co-operation programmes;
ii) The co-ordination between the various Council of Europe actors in the provision of assistance; and
iii) The targeting of relevant technical assistance available to each State Party on a bilateral basis, taking into account particular judgments of the Court;
h) Invites the Court to indicate those of its judgments that it would particularly recommend for possible translation into national languages; and
i) Reiterates the importance of co-operation between the Council of Europe and the European Union, in particular to ensure the effective implementation of joint programmes and coherence between their respective priorities in this field.
B. Interaction between the Court and national authorities
10. The States Parties to the Convention are obliged to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, and to provide an effective remedy before a national authority for everyone whose rights and freedoms are violated. The Court authoritatively interprets the Convention. It also acts as a safeguard for individuals whose rights and freedoms are not secured at the national level.
12. The Conference therefore:
a) Welcomes the development by the Court in its case law of principles such as subsidiarity and the margin of appreciation, and encourages the Court to give great prominence to and apply consistently these principles in its judgments;
b) Concludes that, for reasons of transparency and accessibility, a reference to the principle of subsidiarity and the doctrine of the margin of appreciation as developed in the Court’s case law should be included in the Preamble to the Convention and invites the Committee of Ministers to adopt the necessary amending instrument by the end of 2013, while recalling the States Parties’ commitment to give full effect to their obligation to secure the rights and freedoms defined in the Convention;
c) Welcomes and encourages open dialogues between the Court and States Parties as a means of developing an enhanced understanding of their respective roles in carrying out their shared responsibility for applying the Convention, including particularly dialogues between the Court and:
i) The highest courts of the States Parties;
ii) The Committee of Ministers, including on the principle of subsidiarity and on the clarity and consistency of the Court’s case law; and
iii) Government Agents and legal experts of the States Parties, particularly on procedural issues and through consultation on proposals to amend the Rules of Court;
d) Notes that the interaction between the Court and national authorities could be strengthened by the introduction into the Convention of a further power of the Court, which States Parties could optionally accept, to deliver advisory opinions upon request on the interpretation of the Convention in the context of a specific case at domestic level, without prejudice to the non-binding character of the opinions for the other States Parties; invites the Committee of Ministers to draft the text of an optional protocol to the Convention with this effect by the end of 2013; and further invites the Committee of Ministers thereafter to decide whether to adopt it; and
e) Recalls that the Izmir Conference invited the Committee of Ministers to consider further the question of interim measures under Rule 39 of the Rules of the Court; and invites the Committee of Ministers to assess both whether there has been a significant reduction in their numbers and whether applications in which interim measures are applied are now dealt with speedily, and to propose any necessary action.
C. Applications to the Court
13. The right of individual application is a cornerstone of the Convention system. The right to present an application to the Court should be practically realisable, and States Parties must ensure that they do not hinder in any way the effective exercise of this right.
14. The admissibility criteria in Article 35 of the Convention define which applications the Court should consider further on their merits. They should provide the Court with practical tools to ensure that it can concentrate on those cases in which the principle or the significance of the violation warrants its consideration. It is for the Court to decide on the admissibility of applications. It is important in doing so that the Court continues to apply strictly and consistently the admissibility criteria, in order to reinforce confidence in the rigour of the Convention system and to ensure that unnecessary pressure is not placed on its workload.
15. The Conference therefore:
a) Welcomes the Court’s suggestion that the time limit under Article 35(1) of the Convention within which an application must be made to the Court could be shortened; concludes that a time limit of four months is appropriate; and invites the Committee of Ministers to adopt the necessary amending instrument by the end of 2013;
b) Welcomes the stricter application of the time limit in Article 35(1) of the Convention envisaged by the Court; and reiterates the importance of the Court applying fully, consistently and foreseeably all the admissibility criteria including the rules regarding the scope of its jurisdiction, both to ensure the efficient application of justice and to safeguard the respective roles of the Court and national authorities;
c) Concludes that Article 35(3)(b) of the Convention should be amended to remove the words “and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal”; and invites the Committee of Ministers to adopt the necessary amending instrument by the end of 2013;
e) Welcomes the increased provision by the Court of information to applicants on its procedures, and particularly on the admissibility criteria;
f) Invites the Court to make specific provision in the Rules of Court for a separate decision to be made on admissibility at the request of the respondent Government when there is a particular interest in having the Court rule on the effectiveness of a domestic remedy which is at issue in the case; and
g) Invites the Court to develop its case law on the exhaustion of domestic remedies so as to require an applicant, where a domestic remedy was available to them, to have argued before the national courts or tribunals the alleged violation of the Convention rights or an equivalent provision of domestic law, thereby allowing the national courts an opportunity to apply the Convention in light of the case law of the Court.
D. Processing of applications
16. The number of applications made each year to the Court has doubled since 2004. Very large numbers of applications are now pending before all of the Court’s primary judicial formations. Many applicants, including those with a potentially well-founded application, have to wait for years for a response.
17. In light of the importance of the right of individual application, the Court must be able to dispose of inadmissible applications as efficiently as possible, with the least impact on its resources. The Court has already taken significant steps to achieve this within the framework of Protocol No. 14, which are to be applauded.
18. Repetitive applications mostly arise from systemic or structural issues at the national level. It is the responsibility of a State Party, under the supervision of the Committee of Ministers, to ensure that such issues and resulting violations are resolved as part of the effective execution of judgments of the Court.
19. The increasing number of cases pending before the Chambers of the Court is also a matter of serious concern. The Court should be able to focus its attention on potentially well-founded new violations.
20. The Conference therefore:
a) Welcomes the advances already made by the Court in its processing of applications, particularly the adoption of:
i) Its priority policy, which has helped it focus on the most important and serious cases; and
ii) Working methods that streamline procedures particularly for the handling of inadmissible and repetitive cases, while maintaining appropriate judicial responsibility;
b) Notes with appreciation the Court’s assessment that it could dispose of the outstanding clearly inadmissible applications pending before it by 2015; acknowledges the Court’s request for the further secondment of national judges and high-level independent lawyers to its Registry to allow it to achieve this; and encourages the States Parties to arrange further such secondments;
d) Building on the pilot judgment procedure, invites the Committee of Ministers to consider the advisability and modalities of a procedure by which the Court could register and determine a small number of representative applications from a group of applications that allege the same violation against the same respondent State Party, such determination being applicable to the whole group;
e) Notes that, to enable the Court to decide in a reasonable time the applications pending before its Chambers, it may be necessary in the future to appoint additional judges to the Court; further notes that these judges may need to have a different term of office and/or a different range of functions from the existing judges of the Court; and invites the Committee of Ministers to decide by the end of 2013 whether or not to proceed to amend the Convention to enable the appointment of such judges following a unanimous decision of the Committee of Ministers acting on information received from the Court;
g) Invites the Court to consider, in consultation with the States Parties, civil society and National Human Rights Institutions, whether:
i) In light of the experience of the pilot project, further measures should be put in place to facilitate applications to be made online, and the procedure for the communication of cases consequently simplified, whilst ensuring applications continue to be accepted from applicants unable to apply online;
ii) The form for applications to the Court could be improved to facilitate the better presentation and handling of applications;
iii) Decisions and judgments of the Court could be made available to the parties to the case a short period of time before their delivery in public; and
iv) The claim for and comments on just satisfaction, including costs, could be submitted earlier in proceedings before the Chamber and Grand Chamber;
h) Envisages that the full implementation of these measures with appropriate resources should in principle enable the Court to decide whether to communicate a case within one year, and thereafter to make all communicated cases the subject of a decision or judgment within two years of communication;
i) Further expresses the commitment of the States Parties to work in partnership with the Court to achieve these outcomes; and
j) Invites the Committee of Ministers, in consultation with the Court, to set out how it will determine whether, by 2015, these measures have proven sufficient to enable the Court successfully to address its workload, or if further measures are thereafter needed.
E. Judges and jurisprudence of the Court
21. The authority and credibility of the Court depend in large part on the quality of its judges and the judgments they deliver.
22. The high calibre of judges elected to the Court depends on the quality of the candidates that are proposed to the Parliamentary Assembly for election. The States Parties’ role in proposing candidates of the highest possible quality is therefore of fundamental importance to the continued success of the Court, as is a high-quality Registry, with lawyers chosen for their legal capability and their knowledge of the law and practice of States Parties, which provides invaluable support to the judges of the Court.
23. Judgments of the Court need to be clear and consistent. This promotes legal certainty. It helps national courts apply the Convention more precisely, and helps potential applicants assess whether they have a well-founded application. Clarity and consistency are particularly important when the Court addresses issues of general principle. Consistency in the application of the Convention does not require that States Parties implement the Convention uniformly. The Court has indicated that it is considering an amendment to the Rules of Court making it obligatory for a Chamber to relinquish jurisdiction where it envisages departing from settled case law.
24. A stable judiciary promotes the consistency of the Court. It is therefore in principle undesirable for any judge to serve less than the full term of office provided for in the Convention.
25. The Conference therefore:
a) Welcomes the adoption by the Committee of Ministers of the Guidelines on the selection of candidates for the post of judge at the European Court of Human Rights, and encourages the States Parties to implement them;
b) Welcomes the establishment of the Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights; notes that the Committee of Ministers has decided to review the functioning of the Advisory Panel after an initial three-year period; and invites the Parliamentary Assembly and the Committee of Ministers to discuss how the procedures for electing judges can be further improved;
c) Welcomes the steps that the Court is taking to maintain and enhance the high quality of its judgments and in particular to ensure that the clarity and consistency of judgments are increased even further; welcomes the Court’s long-standing recognition that it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart without cogent reason from precedents laid down in previous cases; and in particular, invites the Court to have regard to the importance of consistency where judgments relate to aspects of the same issue, so as to ensure their cumulative effect continues to afford States Parties an appropriate margin of appreciation;
d) In light of the central role played by the Grand Chamber in achieving consistency in the Court’s jurisprudence, concludes that Article 30 of the Convention should be amended to remove the words “unless one of the parties to the case objects”; invites the Committee of Ministers to adopt the necessary amending instrument, and to consider whether any consequential changes are required, by the end of 2013; and encourages the States Parties to refrain from objecting to any proposal for relinquishment by a Chamber pending the entry into force of the amending instrument;
e) Invites the Court to consider whether the composition of the Grand Chamber would be enhanced by the ex officio inclusion of the Vice Presidents of each Section; and
f) Concludes that Article 23(2) of the Convention should be amended to replace the age limit for judges by a requirement that judges must be no older than 65 years of age at the date on which their term of office commences; and invites the Committee of Ministers to adopt the necessary amending instrument by the end of 2013.
F. Execution of judgments of the Court
26. Each State Party has undertaken to abide by the final judgments of the Court in any case to which they are a party. Through its supervision, the Committee of Ministers ensures that proper effect is given to the judgments of the Court, including by the implementation of general measures to resolve wider systemic issues.
28. The Committee of Ministers is supervising the execution of an ever-increasing number of judgments. As the Court works through the potentially well-founded applications pending before it, the volume of work for the Committee of Ministers can be expected to increase further.
29. The Conference therefore:
a) Encourages the States Parties:
i) to develop domestic capacities and mechanisms to ensure the rapid execution of the Court’s judgments, including through implementation of Recommendation 2008(2) of the Committee of Ministers, and to share good practices in this respect;
ii) to make action plans for the execution of judgments as widely accessible as possible, including where possible through their publication in national languages; and
iii) to facilitate the important role of national parliaments in scrutinising the effectiveness of implementation measures taken;
b) Reiterates the invitation made by the Interlaken and Izmir Conferences to the Committee of Ministers to apply fully the principle of subsidiarity by which the States Parties may choose how to fulfil their obligations under the Convention;
c) Invites the Committee of Ministers to continue to consider how to refine its procedures so as to ensure effective supervision of the execution of judgments, in particular through:
i) more structured consideration of strategic and systemic issues at its meetings; and
ii) stronger publicity about its meetings;
d) Invites the Committee of Ministers to consider whether more effective measures are needed in respect of States that fail to implement judgments of the Court in a timely manner; and
e) Welcomes the Parliamentary Assembly’s regular reports and debates on the execution of judgments.
G. Longer-term future of the Convention system and the Court
30. This Declaration addresses the immediate issues faced by the Court. It is however also vital to secure the future effectiveness of the Convention system. To achieve this, a process is needed to anticipate the challenges ahead and develop a vision for the future of the Convention, so that future decisions are taken in a timely and coherent manner.
31. As part of this process, it may be necessary to evaluate the fundamental role and nature of the Court. The longer-term vision must secure the viability of the Court’s key role in the system for protecting and promoting human rights in Europe. The right of individual application remains a cornerstone of the Convention system. Future reforms must enhance the ability of the Convention system to address serious violations promptly and effectively.
32. Effective implementation of the Convention at national level will permit the Court in the longer term to take on a more focussed and targeted role. The Convention system must support States in fulfilling their primary responsibility to implement the Convention at national level.
34. The Interlaken Conference invited the Committee of Ministers to evaluate, during the years 2012 to 2015, to what extent the implementation of Protocol No. 14 and of the Interlaken Action Plan had improved the situation of the Court. It provided that, on the basis of this evaluation, the Committee of Ministers should decide before the end of 2015 whether there is a need for further action. It further provided that, before the end of 2019, the Committee of Ministers should decide on whether the measures adopted have proven to be sufficient to assure sustainable functioning of the control mechanism of the Convention or whether more profound changes are necessary.
35. The Conference therefore:
a) Welcomes the process of reflection on the longer-term future of the Court begun at the Interlaken Conference and continued at the Izmir Conference; and welcomes the contribution of the informal Wilton Park conference to this reflection;
b) Invites the Committee of Ministers to determine by the end of 2012 the process by which it will fulfil its further mandates under this Declaration and the Declarations adopted by the Interlaken and Izmir Conferences;
c) Invites the Committee of Ministers, in the context of the fulfilment of its mandate under the Declarations adopted by the Interlaken and Izmir Conferences, to consider the future of the Convention system, this consideration encompassing future challenges to the enjoyment of the rights and freedoms guaranteed by the Convention and the way in which the Court can best fulfil its twin role of acting as a safeguard for individuals whose rights and freedoms are not secured at the national level and authoritatively interpreting the Convention;
d) Proposes that the Committee of Ministers carry out this task within existing structures, while securing the participation and advice of external experts as appropriate in order to provide a wide range of expertise and to facilitate the fullest possible analysis of the issues and possible solutions;
e) Envisages that the Committee of Ministers will, as part of this task, carry out a comprehensive analysis of potential options for the future role and function of the Court, including analysis of how the Convention system in essentially its current form could be preserved, and consideration of more profound changes to how applications are resolved by the Convention system with the aim of reducing the number of cases that have to be addressed by the Court.
f) Further invites the States Parties, including through the Committee of Ministers, to initiate comprehensive examination of:
i) the procedure for the supervision of the execution of judgments of the Court, and the role of the Committee of Ministers in this process; and
ii) the affording of just satisfaction to applicants under Article 41 of the Convention; and
g) As a first step, invites the Committee of Ministers to reach an interim view on these issues by the end of 2015.
H. General and final provisions
36. The accession of the European Union to the Convention will enhance the coherent application of human rights in Europe. The Conference therefore notes with satisfaction progress on the preparation of the draft accession agreement, and calls for a swift and successful conclusion to this work.
37. The Conference also notes with appreciation the continued consideration, as mandated by the Interlaken and Izmir Conferences, as to whether a simplified procedure for amending provisions of the Convention relating to organisational matters could be introduced, whether by means of a Statute for the Court or a new provision in the Convention, and calls for a swift and successful conclusion to this work that takes full account of the constitutional arrangements of the States Parties.
38. Where decisions to give effect to this Declaration have financial implications for the Council of Europe, the Conference invites the Court and the Committee of Ministers to quantify these costs as soon as possible, taking into account the budgetary principles of the Council of Europe and the need for budgetary caution.
39. The Conference:
a) Invites the United Kingdom Chairmanship to transmit the present Declaration and the Proceedings of the Conference to the Committee of Ministers;
b) Invites the States Parties, the Committee of Ministers, the Court and the Secretary General of the Council of Europe to give full effect to this Declaration; and
c) Invites the future Chairmanships of the Committee of Ministers to ensure the future impetus of the reform of the Court and the implementation of the Convention.