Non-governmental organisations and other interested bodies from more than 30 European states have had their suggestions for reforming the European Court of Human Rights (Strasbourg) collated into a ‘thematic review’ prepared by the Council of Europe.
The review exposes weaknesses in the operation of the Strasbourg court, including the backlog of cases, the failure to execute judgments and the UK’s repeated threat to pull out of the human rights convention (ECHR).
Contributors to the review blame the overload of cases on the ‘inadequate level of resources’, including judicial resources, made available to the Strasbourg court, as well as on poor implementation of the convention at a national level.
The economic crisis has also played a role, it says.
The report is the outcome of an open call for ‘information, proposals and views’ on reforming the Strasbourg court as part of the 2012 Brighton Declaration.
The review contains several proposals to improve the execution of judgments, such as setting up national mechanisms for the execution of judgments in each member state and giving more resources to the department within the Strasbourg court that is responsible for overseeing the execution of judgments.
UK threats to withdraw from the ECHR are grouped under the more general heading of ‘political tendencies within member states, such as nationalism, populism or social conservatism’. The report does not distinguish which of these ‘tendencies’ is relevant to the UK, although attacks on European institutions have long attracted the populist vote.
A ‘considerable number’ of contributors refer to ‘subsidiarity’, or how states reflect the ECHR in their national law, and to the ‘margin of appreciation’, which is the need for judgments to take into account the cultural, historic and philosophical differences between Strasbourg and the state in question.
All recognise the significance of these concepts to the ECHR system, but some call for their more complete application, while others argue that they should be given less influence because they risk undermining the court’s authority.
The ‘living instrument’ doctrine that the court is constantly evolving and that its judgments should reflect this is also discussed.
Some argue that the ‘living instrument’ is a ‘very important and positive aspect of the ECHR system’. Others argue that ‘to honour the rule of law, the court must abandon the living European consensus model’.
The Brighton declaration, which proposed many reforms to the Strasbourg court, was adopted in the final days of the UK’s chairmanship of the Council of Europe.