Blog of the International Journal of Constitutional Law

Will the ECtHR have its wings clipped?

The Brighton Declaration, consisting of British proposals for reform of the ECtHR and the European Convention on Human Rights itself (ECHR), has been leaked on the Internet. (The British currently hold the chairmanship of the Committee of Ministers of the Council of Europe). You can find it here and here. If some of these proposals are adopted, the ECtHR will have a lot less to do than it does now.

There is quite a bit in the declaration to digest, but highlights include the following:

– Enabling the ECtHR to give nonbinding advisory opinions upon the request of national courts.
– Incorporation into the Convention of doctrines already applied by the ECtHR, namely, subsidiarity and the infamous “margin of appreciation” that demands deference to national governments.
– Shortening the deadline for individual petitions.
– As an “alternative” to shortening the filing deadline: applications to the ECtHR would be deemed “inadmissible” if the claim is “identical in substance” to one brought in a national court, UNLESS the national court “clearly erred” in its application of the Convention.

Amendment of the Convention is inherently difficult: it requires unanimity among the 47 member states of the Council of Europe. But reform of the Court is a different story. It’s clear that the ECtHR is swimming (drowning?) in cases: the Guardian reports a backlog of 165,000 cases. Institutional reforms thus far (such as the introduction of 3-judge panels, and then dispositions by a single judge) have not enabled the Court to surmount the 65,000 or so petitions that come in per year. Not that the Court doesn’t dispose of a lot of cases: it does, to the tune of 50,000 or so per year. (These statistics, and a fistful more, are available on the Court’s website.) But do the math, and you see the problem.

The question then is whether the cure will be worse than the disease. The “alternative” proposal to boot “identical in substance” petitions is quite drastic, obviously, and would no doubt enable the ECtHR to dispose of its docket more quickly, but at the potential cost of limiting its enforcement of the Convention to something that resembles in scope federal habeas review of state court convictions in the U.S. (i.e., extremely deferential review).

The ECtHR’s own skeptical response to the Brighton Declaration can be found here; discussion of the response, and other useful commentary, can be found at the UK Human Rights Blog.


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