Council of Europe: Shelve Risky Court Reforms

Council of Europe member states should reject proposed UK changes to the European Court of Human Rights that could limit access to the court for those who most need it, Human Rights Watch said today. The proposals will be among a range of suggested changes to the court considered at a three-day summit starting on April 18, 2012, in the UK city of Brighton.

The draft proposals put forward by the UK contain many positive proposals, including a range of measures aimed at improving implementation of judgments by national authorities, Human Rights Watch said. But two proposals - one to limit the court's ability to hear cases involving serious human rights abuse and other emphasizing principles that serve the interests of governments over those of the potential victims of human rights violations - are deeply problematic, and risk undermining the court. The UK currently chairs the Council of Europe Committee of Ministers, the organization's highest decision-making body.

"These proposals risk creating a two-tier system, barring some of those who need the European Court's protection most," said Benjamin Ward, deputy Europe and Central Asia director at Human Rights Watch. "Council of Europe governments should shelve those risky plans, and focus instead on the positive ideas to improve implementation at home."

The UK has made reform of the European Court of Human Rights the priority of its chairmanship. The court has a backlog of 150,000 cases, and the stated objective of the proposals is to address that problem.

Steps are already being taken to address the backlog, with the court streamlining its decision-making, and applying priority criteria to ensure that only cases raising serious human rights issues are heard. A mechanism aimed at ensuring that governments carry out judgments, known as Protocol 14, has been in force for less than two years. The failure by governments to address systematic problems leads to repeated cases seeking relief for same abuses and is a key reason for the backlog. The UK proposals to improve national implementation are a positive contribution, Human Rights Watch said.

The two problematic proposals could have an impact on the backlog, but only at the expense of human rights protection the court offers, Human Rights Watch said.

The first would require the European Court to reject an application if a national court has already considered the human rights issues it raises and taken into account the European Court's approach in similar cases in the past. An exception would be allowed if the European Court concluded there was a "serious" question about the correct interpretation of its own case law.

The effect of this change could mean that in some instances the European Court might have to reject cases even if they raised serious human rights issues. This is especially worrisome for Council of Europe countries like Turkey, Azerbaijan, and Russia, where the national courts have a poor record of protecting human rights, Human Rights Watch said.

The second would amend the convention to emphasize that the national governments should be given latitude (known as "the margin of appreciation") by the European Court to decide how rights are applied and that decisions should be made by national authorities rather than the European Court where possible (known as "subsidiarity").

The two principles are already given due weight by the court, together with others of equal importance, such as the principle that the essence of a right cannot be limited and that rights protection should be "practical and effective," Human Rights Watch said.

Codifying principles that emphasize government interests is unnecessary," Human Rights Watch said. It would give them undue weight in relation to other principles that ensure that rights are genuinely protected. It also risks playing into the hands of governments that wish to deflect attention from their abusive practices.

The two problematic proposals have drawn widespread criticism from leading human rights groups and from civil society organizations across Europe. The strength and breadth of opposition to them should give Council of Europe member states serious pause, Human Rights Watch said.

"For many victims of human rights abuse in Europe, the European Court offers the only real chance for justice," Ward said. "Limiting access to the court in the way the UK proposes would put this crucial safeguard at risk."