On Thursday, the member states of the European Convention of Human Rights will meet in Copenhagen to adopt a joint declaration on the future of the human rights system in Europe. The Draft of the Copenhagen Declaration, presented on 5 February 2018 and sponsored by the current Danish Presidency of the Council of Europe, has met with considerable alarm on the part of human rights activists and academics. It makes unclear, ambiguous or inaccurate statements that could represent a serious crisis of the system if not redefined in the adoption of the final Declaration

Queralt Jiménez, Argelia

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Argelia Queralt Jiménez Mo 9 Apr 2018 Mo 9 Apr 2018The Copenhagen Declaration: Are the Member Statesabout to Pull the Teeth of the ECHR?verfassungsblog.de/the-copenhagen-declaration-are-the-member-states-about-to-pull-the-teeth-of-the-echr/On Thursday, the member states of the European Convention of Human Rights will meet inCopenhagen to adopt a joint declaration on the future of the human rights system inEurope. The Draft of the Copenhagen Declaration, presented on 5 February 2018 andsponsored by the current Danish Presidency of the Council of Europe, has met withconsiderable alarm on the part of human rights activists and academics. It makes unclear,ambiguous or inaccurate statements that could represent a serious crisis of the system ifnot redefined in the adoption of the final Declaration.The draft Declaration is one more step in the ongoing process of improving the system,pursued at a series of conferences in Interlaken (2010), Izmir (2011), Brighton (2012) andBrussels (2015). These conferences were principally concerned with the compliance ofStates to their ECHR obligations. The current Copenhagen conference, however, seems tofocus more on increasing the member states’ control over the Strasbourg Court.The draft Declaration has been subject of lively debates over the last few weeks by relevantexperts in the field (most of all on Strasbourg Observers and EJIL Talk). And this isbecause the text of the draft has generated well-based suspicions among them all. It aims,at least formally, to reinforce the subsidiary nature of the European guarantee system butalso to bolster the legal status of the State’s margin of appreciation. Both concepts are fullysubsumed in the European guarantee system, in the supervisory role of the ECtHR and inthe supervision of the Committee of Ministers, as well as in the doctrine devoted to theirstudy. So much so that Protocol No. 15 to the ECHR, which is awaiting ratification in sixmember states (including Spain) to enter into force, provides for an additional recital in thepreamble of the ECHR so that both principles are explicitly recognised in the Conventiontext as follows:“Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity,have the primary responsibility to secure the rights and freedoms defined in this Conventionand the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject tothe supervisory jurisdiction of the European Court of Human Rights established by thisConvention”.In any case, the Draft Copenhagen Declaration is in line with the boost given to theprinciple of subsidiarity in the jurisdiction of the Strasbourg Court, which had also been theLeitmotiv of the Brighton Declaration of 2012, and to the principle of the margin ofappreciation, which is somewhat more complex and generates conflicting positions withinthe doctrine.The declaration touches the following topics: (a) shared responsibility: better balance,improved protection; (b) national compliance: the main role of the States; (c) Europeansupervision: the subsidiary role of ECtHR; (d) interaction between the national and1/4European levels: the need for dialogue and participation; (d) the workload challenge: theneed for further action; (e) interpretation: the need for clarity and coherence; (f) theselection and election of judges: the importance of cooperation; and (g) the enforcement ofsentences. It also refers to the entry of the European Union and the entry into force ofProtocols No. 15 and 16 to the ECHR, albeit on a residual basis.This sounds all familiar. But there also appears be have been a change of focus. The draftdeclaration seems to call on the ECtHR, and not so much on the States, to modulate theiraction. And it is precisely this change of direction that has alerted academia and otherstakeholders in the system (especially NGOs).I’ll explain myself. There is a strong tension between the function of individual protection ofrights and the constitutional function exercised by the ECtHR. This tension is experiencedby the ECtHR itself in at least two ways: on the one hand, the case overload it has to faceand which it has been trying to overcome with improvements in its internal organisation andfunctioning. And, on the other hand, the increasingly evident tendency of the Court to optfor the establishment of general standards so that States, using their margin ofappreciation, are responsible for applying them in each specific case. In such a context, theECtHR must deal with domestic failures to guarantee fundamental rights, sometimesstructural failures, repetitive cases, and the fact that for some individuals the ECtHR is nota subsidiary guarantee of their rights, but the first and only one. So, the Court must handledifferent type of cases and sometimes such reality forces the Court to go the bottom of acase, calling into question the margin of appreciation highly appreciated by the States. Inpractice, moreover, States do not like the ECtHR establishing general principles that definethe scope of domestic rights, because this implies conditioning their sovereign scope.Basically, in the words of Prof. Janneke Gerards, “although the States thus seem toembrace the Court’s constitutional role and even appear to want to enhance its function ofstandard-setting, apparently they do not like to accept the consequences of this”.In my opinion, the scope of competence of European Court and its right to adjudicate overthe scope of the ECHR rights, its judicial independence and the authority of its judgmentsare at stake.In the section on shared responsibility, which is undoubtedly one of the foundations of theEuropean system of rights, the draft Declaration incorporates two particularly shockingelements. In particular, the definition of subsidiarity adds a hitherto non-existent referenceto the constitutional tradition and the national circumstances of each State. As the ECtHRpoints out in its opinion on the draft, these two elements may be taken into account by theCourt when deciding each specific case. However, it is not acceptable that the Court’sjurisdiction should be limited or conditioned a priori by each of the normative and/or socialpeculiarities of each State.With regard to the enforcement of judgements at the domestic level, there is nothing tocriticize. It would be very positive for the European system if everything set out in the draftwere to be complied with, since it reinforces the idea that compliance with judgments is theprimary obligation of States, and even incorporates a series of measures that should be2/4adopted and that were already recommended in Brighton in 2012, relating to the obligationof States to make their general provisions, administrative practices and case lawcompatible with the European standard.Many more questions arise, however, in the following sections of the Draft Declaration.With regard to subsidiarity, the criterion developed by the ECtHR in response to theDeclaration of Brighton is taken up: “qualitative and democracy-enhancing approach“. Thisterm, coined by the current ECtHR Judge Robert Spano, implies that the Court tries to limitits analysis of the correct protection of conventional rights to verify whether the internaldecision-making processes were sufficiently weighted. However, this does not mean, as theCourt itself claims, that the scope of subsidiarity should be determined by the States in, forexample, a Declaration, but that it is the European Jurisdiction itself that must assess ineach case what role subsidiarity plays. Otherwise, the very role of the ECtHR as a guardianwould be distorted.The current wording of the paragraphs on the dialogue to be held between States and theEuropean Court is also alarming. While it the intention to foster the dialogue between thepublic authorities and the ECtHR is laudable, the dialogue instruments pointed out mayinvolve a direct attack on the independence of the Court. Thus, while the Draft is right toencourage member states, for example, to make more use of third party interventions, itdoes not seem appropriate, on the other hand, for States to seek to draw up reportsthrough a sort of discussion group on human rights and for these to be referred to theECtHR for consideration. The dialogue to be maintained by the ECtHR is with the otherjudges and courts involved in the European system of rights protection, i.e. the ordinarycourts and constitutional courts of the States parties. But a proposal for direct dialoguebetween states, indeed governments, and the Court could call into question its judicialindependence. The current wording of the proposal to allow States to participate in therequest for a case to be re-examined by the Grand Chamber also raises doubts. Thisproposal could be of interest to the ECtHR as a kind of third party intervention (given thenature of the cases that go to the Grand Chamber), provided that it is understood that theexpression used in the draft “to take such support into account when determining whetherthe conditions of Article 43 (2) of the Convention have been met” implies exclusively thatthe ECtHR will take into account but will not be bound or compelled by them.In any event, and in line with what was said in its Opinion by the ECtHR, the Draft of theCopenhagen Declaration needs to be modified before it can be adopted, in order to clarifythat the European Court alone has the power to monitor the fulfilment of the States’obligations under the ECHR (both from the point of view of the exclusivity of the power ofcontrol and from the point of view of its competences) and that, in order to do so, they mustrespect the judicial independence and the legal content of the Convention.On these premises, a profound reform of the Convention and the Court to improve itsfunctioning, and increase its effectivity and the quality of its decisions, requires time. Andmoney: as the ECtHR points out, the member states should make a greater budgetaryeffort to improve the situation, a request which had already been expressed in the Brusselsdeclaration and which is mentioned somewhat superficially in the Copenhagen draft.3/4LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Queralt Jiménez, Argelia: The Copenhagen Declaration: Are theMember States about to Pull the Teeth of the ECHR?, VerfBlog, 2018/4/09,https://verfassungsblog.de/the-copenhagen-declaration-are-the-member-states-about-to-pull-the-teeth-of-the-echr/, DOI: https://dx.doi.org/10.17176/20180409-140831.4/4

The Copenhagen Declaration: Are the Member States about to Pull the Teeth of the ECHR?

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The Copenhagen Declaration: Are the Member States about to Pull the Teeth of the ECHR?

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