Below is the text of my submission to the public consultation on the longer term future of the ECHR and ECtHR. It focuses on the Court and argues for the prioritisation of constitutionalism over adjudication in the workload of the Court.
Future Challenges to the Convention System
The European Court of Human Rights (ECtHR) faces three particular challenges in the future: the possible breakdown of the relationship between the Court and (some) member states, rights-based implications of social conservatism in some member states, and a persistently high volume of complaints to the Court.
In respect of the breakdown of the relationship between the Court and (some) member states particular attention must be paid to the relationship with the United Kingdom. As a ‘high reputation’ and high compliance state, as well as a founding state of the Convention, the UK’s approach to the Court is of political as well as legal importance. In recent years, the relationship has begun to experience severe challenges reflected in domestic political and, in some cases, legal resistance to adverse findings from the Court, the proposition for the repeal of the Human Rights Act 1998, and a highly critical representation of the Court and its work in some parts of the UK press.
In respect of social conservatism in some member states the persistent challenges experienced by LGBTI persons, in particular, in accessing health care, social and legal institutions (such as marriage) and in exercising free expression including through Pride marches and public displays of political and personal views without fear of violence are serious challenges to the Convention’s capacity to give fuller effect to those elements required for the functioning of a democratic society, and to ensure respect for private and family life under Article 8. This is reflected not only in official state utterances and laws in some states (including quite new laws aimed at repressing freedom of expression in relation to homosexuality) but also in the failure of state officials to protect LGBTI activists from violence. This stands in sharp contrast to the extensive jurisprudence on LGBT(I) rights under Article 8 of the Convention, in particular, which appears to play little or no role in domestic politico-legal discourses on these matters.
In respect of the persistently high volume of complaints to the Court it must be noted that the Court has made significant inroads into the existent backlog in recent months. Nevertheless the volume of new complaints and size of the backlog remain very high. This continues to pose serious difficulties for the Court in three respects. First, it may suggest a persistent misunderstanding of the role and subsidiary nature of the Court across the Council of Europe, with high volumes of applicants attempting to access the Court without having exhausted domestic remedies or in order to achieve a further ‘appeal’. Second, the high proportion of such cases that are repetitious or raise issues in respondent states that have already been resolved by the Court in respect of another state suggest that the broader jurisprudence of the Court may not be being effectively integrated at national level (politically, legally, or both), so that the workload of the Court is obtusely increased. Third, the high volume of complaints being received by the Court results in a serious deflection of resources towards the resolution of threshold questions of admissibility. This raises the risk of the hyper-bureaucratisation of admissibility and other threshold decisions for the purposes of manageability, potentially reducing the extent to which the flexibility that has long characterised admissibility decisions by the Court (notwithstanding the precision of some admissibility criteria) can be maintained.
The recommendations for consideration outlined below aim to address each of these challenges.
Reorientation of the Court’s Workload: Constitutionalism rather than Adjudication
The Court might be said to have two functions at present: adjudicatory and constitutionalist. In adjudicatory terms the Court is often called upon to decide complaints that raise issues of factual determination and/or are repetitious to cases already decided in relation to the same issues, same respondent state, or both. In constitutionalist terms, the Court is sometimes called to decide upon complaints that involve the articulation and evolution, as well as the effective implementation, of human rights principles under the Convention.
Although maintaining the principle of individual petition (which is desirable) almost inevitably means that these two categories of cases are likely to arise in the complaints submitted to the Court, the nature of the Court as a subsidiary institution as well as the desirability of states properly internalising the Convention within domestic legal and political systems, is such that—combined with the high level of complaints received—prioritisation of one function over another in resource allocation (including court time) is recommended.
In this respect, it is submitted that constitutionalism ought to be preferred over the adjudicatory function. It must be noted that not all repetitive cases are necessarily non-constitutionalist. Certainly, where there is a situation of endemic rights violations it may well take repeated decisions of the Court finding a violation to force some kind of change in state behaviour. More important, however, would be the effective execution of judgments and enforcement of the standards outlined therein through the political processes of the Council of Europe itself (considered below).
In some respects it seems that the Grand Chamber already applies a ‘preference for constitutionalism’ when deciding upon which cases will be heard there, however a more explicit engagement with constitutionalism in this respect would be welcome. The Grand Chamber should consider providing short decisions explaining why a complaint is being heard, or not heard, by the Grand Chamber, similar to decisions as to whether or not to grant certiorari that are handed down by the US Supreme Court. This would allow for the Court to more expressly map its constitutionalist activity and to explain the reasons from a constitutionalist perspective for engaging with a particular issue. It is proposed that such short reasons might also aid in maintaining a healthy relationship with states as they would explicitly outline the Court’s decision to engage—or re-engage—with an issue at the Grand Chamber level.
The privileging of constitutionalist cases should also take place in the chambers but at this level ‘constitutionalism’ might be broadly construed to ensure that, while purely adjudicatory complaints are not considered, complaints that have some constitutionalist elements while being partially adjudicatory, and especially where there is no prospect of domestic resolution, would be considered provided they comply with all admissibility requirements.
Execution of Judgments
The effective execution of judgments is vital in order for a shift to constitutionalism to take place without closing off the Court to petitions where there is no realistic prospect of resolution at domestic level or where individual violations are serious and persistent, while nevertheless not raising clearly constitutionalist issues. One of the implications of the Court’s present dual functionality is that it arguably removes incentives for the effective embedding of the Convention at both the domestic and the COE level. Such a lack of embeddedness might give rise to a downward spiral where the Court feels compelled to continue to accept individual and non-constitutionalist applications for the lack of effective redress in domestic systems, but the domestic systems are enabled to avoid creating systems of effective redress by the ‘escape hatch’ of the European Court of Human Rights. In this respect, reforms in the supervision of judgments and, more broadly, in the extent to which the Convention principles as articulated by the Court are incorporated in political relations within the COE would be welcome.
Many of the repetitious applications that are lodged with the Court concern systemic rights violations that have been the subject of consideration by the Court in the past and are well known to their fellow member states. Article 46 makes it clear that the Committee of Ministers plays a role in the supervision of the execution of judgments, but within an inter-state organisation that has a core human rights mission, limiting inter-state enforcement of Convention standards to this function marginalises the Convention with its broader politico-legal context. As long as the Council of Europe itself can rely on the Court to continue to hear—or at least deal with at admissibility level—these repetitive applications (i.e. to fulfil its typical adjudicatory function), it can continue to abdicate its responsibility to mainstream and centralise the Convention in its own institutional processes. It is not enough to have ad hoc investigations—as, indeed, the Council occasionally does—for this does not place the Convention front and centre in the general business of the Council.
Article 46 provides that judgments of the Court are binding only on the states that are party to them but of course the principles outlined therein (especially in constitutionalist cases) have implications beyond those state parties. The only way in which the importance of those principles can be fully appreciated by member states within the COE is through an appropriate level of inter-state interaction, encouragement, reputational trading, and other typical international relations processes. It is incumbent upon states to ensure that compliance with the judgments of the Court and the principles of the Convention is an expected course of behaviour from all member states and, almost more importantly, that failure to do this is subject to political sanction quite apart from the juridical processes of the Court. Thus, manifest attitudinal change relating to inter-state expectations of compliance with the Convention and with the judgments of the Court would be welcome. This is especially important in respect of states that are persistent violators of the Convention, in respect of whom the greatest volume of complaints are generated, and whose actions are sometimes in clear contrast with established jurisprudence of the Court. Current trends towards social conservatism with resultant negative implications for LGBTI persons, discussed above, exemplify this; the clear inconsistency of states’ repression of sexual freedom, repression of expression relating to sexuality, and failure to protect persons who are LGBTI with Articles 2, 8 and 10 of the Convention ought not to bring serious political repercussions within the COE without the need for the Court to restate its existing jurisprudence.
Enhanced Embeddedness at National Level
It is arguable that maintaining the Court’s adjudicatory function may create the possibility for domestic political processes to marginalise the Convention, either consistently or in relation to certain issues where there is a marked difference between the desired approach of the domestic legal system and the requirements of the Convention. Where a state can be sure that, if it proceeds along a certain path or perpetuates a particular situation, it can remain somewhat secure in that until and unless there is a decision of the ECtHR that expressly finds a violation of the Convention then it may result in a kind of ennui. There is no need to take a difficult or perhaps unpopular decision to comply with the Convention; rather the state can wait until there is a case against it, a violation is found, and the changes are made and represented as being required by the nebulous but somewhat dominating concept often referred to as ‘Europe’.
A reorientation of the Court towards constitutionalism may enhance national embeddedness of the Convention. First, a greater degree of inter-state political pressure for change within the Council of Europe might arise if the attitudinal shifts considered above materialise. Second, NGOs that currently apply substantial amounts of energy (and, indeed, resources) to supporting litigants supporting ECtHR litigation may be able to redirect those resources towards the domestic political and legal processes. Third, a more mature relationship between the Convention and domestic legislative processes may develop with resultant positive implications for the relationship between states and the Court. Fourthly, domestic courts might take more ownership of the Convention and, particularly, of giving it a meaning in domestic legal systems that builds on (rather than is limited by) the minimum standards outlined in the ECtHR. Thus, rather than considering themselves incapable of developing the Convention beyond the standards outlined by the Strasbourg Court (as we have seen the Irish Supreme Court doing in McD v L  IESC 81) and being able to rely on the European court of Human Rights to ‘nudge’ them step-by-step along the way (take, for example, the interaction between the House of Lords/UK Supreme Court and Strasbourg Court on removal from public housing: Harrow London Borough Council v Qazi  UKHL 43; Kay v Lambeth London Borough Council  UKHL 10; Doherty v Birmingham CC  UKHL 57; Manchester City Council v Pinnock  UKSC 45), domestic courts would be incentivised to develop their own autonomous understandings of the Convention.