Q&A: Reforming European Court of Human Rights
- 23 April 2012
- From the section Europe
The UK says significant reforms of the European Court of Human Rights (ECHR) have been agreed at a special conference in Brighton, on England's south coast.
The conference on 19-20 April resulted in a declaration by all 47 nations in the Council of Europe, which will modify the way the court handles human rights cases.
The Council of Europe, separate from the 27-nation EU, is Europe's main watchdog for human rights and democracy.
Why does the European Court matter to ordinary citizens?
The ECHR, set up in the French city of Strasbourg after World War II, rules on the grievances of individuals who believe their national courts have failed to deliver justice.
The freedom of individuals to access the court without having to hire expensive lawyers is a core principle.
The court's role is to apply the rights set out in the European Convention on Human Rights and ensure that all 47 nations abide by them. Any one of those states can also bring a case against a fellow Council of Europe state when it believes that state is violating the European Convention.
The court's rulings are legally binding on member nations and the Council of Europe checks to see that national authorities do not simply ignore them.
Why was the conference significant?
Reform of the ECHR is not a UK initiative - in recent years there have been two similar conferences, in Interlaken (Switzerland) and Izmir (Turkey).
But the UK hands over its six-month chairmanship of the Council of Europe to Albania on 23 May and wanted to secure changes to the court's procedures before then.
Last December the ECHR itself acknowledged that its huge caseload was hampering its work. The backlog of cases had risen to 152,800.
In a speech in January UK Prime Minister David Cameron said "the sheer volume risks urgent cases being stuck in the queue" and "that means the very purpose of the court - to prevent the most serious violations of human rights - is under threat".
The Brighton Declaration will amend the European Convention, to give prominence to the principles of "subsidiarity" and "margin of appreciation".
Those principles mean giving national courts more freedom to deal with human rights cases and to interpret the European Convention as they see fit.
Another amendment will tighten the ECHR's admissibility criteria, so that more trivial cases can be rejected.
Claimants will have four months rather than the current six to lodge a case with the ECHR, once they have exhausted legal options in the national courts.
The ECHR has already taken steps to speed up the processing of cases. Under an innovation called Protocol 14 a single judge, helped by an assistant, can now filter out inadmissible cases.
But the court recognises that more action is needed to tackle the backlog. Russia is the biggest single source of cases.
There is a particular problem with "repetitive" cases - where a violation of the Convention repeats a similar violation already dealt with by a previous ECHR ruling.
Sometimes such cases arise because national judges or parliaments have failed to take heed of existing European case law.
The ECHR had almost 34,000 repetitive cases to deal with in early 2012. It says some progress is being made with "pilot judgments" - that is, advice on specific legal changes that states need to make to avoid similar cases recurring.
Do the Strasbourg judges have too much power?
Mr Cameron's Conservatives certainly think so.
Mr Cameron says the ECHR sometimes interferes unnecessarily in cases already dealt with satisfactorily by national courts. He says some countries such as the UK observe the European Convention's rules much better than others and the ECHR should really focus its efforts on the worst violations of human rights.
The Brighton Declaration strengthens the requirement for ECHR judges to consider whether a case has been properly considered by a national court, and to hear it only if it raises a new point of law.
But the ECHR Chairman, Sir Nicolas Bratza, played down the Brighton outcome, saying "I don't expect the dramatic changes that some have anticipated".
The declaration, due to be ratified by all 47 states by 2013, confirms the ultimate authority of the ECHR to interpret the European Convention.
But it stops short of imposing fines on member states that fail to act on the ECHR's judgments.
What prompted the UK to push so strongly for reform?
Some high-profile cases have set Mr Cameron's government at odds with the Strasbourg court.
The court threatened action against the UK for not complying with a 2005 ruling that said prisoners had a right to vote, under the European Convention. The ruling was over the case of a convicted killer, John Hirst. A majority of MPs at Westminster voted to defy the ECHR on this issue.
Then the case of Islamist cleric Abu Qatada made headlines when the ECHR blocked a UK move to deport him to Jordan to face trial. The judges feared that evidence obtained by torture would be used against him in Jordan.
Abu Qatada, said to be linked to al-Qaeda, will probably be deported anyway as the UK government says it has received new assurances from Jordan about his case.
But his lawyers lodged a last-minute appeal, so the deportation process cannot begin until a panel of judges decides whether the case should go to the ECHR's Grand Chamber.
Is there any resistance to the UK Conservatives' position?
Yes. The International Commission of Jurists (ICJ) issued a joint statement with several human rights organisations including Amnesty International, arguing that the ECHR's authority to consider cases should not be diluted.
The ICJ is made up of legal experts who interpret and advise on international law. The statement says "the reference in the UK objectives … to the role of the court as 'subsidiary' is particularly regrettable".
The statement also opposes any attempt to reduce the ECHR's backlog through a "sunset" mechanism - that is, setting an artificial time-limit beyond which a case will not be considered.
The Law Society, representing solicitors in England and Wales, says the UK must retain the 2000 Human Rights Act, which makes the European Convention enforceable in UK courts. It does not want the act replaced with a Bill of Rights, which is what Mr Cameron's Conservatives want to do.
The Bill of Rights plan is still being debated as Mr Cameron's coalition partners, the Lib Dems, are unhappy about it.
What connection does the ECHR have with the EU?
The ECHR and Council of Europe operate outside the EU institutions.
But the court's rulings affect EU member states and become part of European case law, influencing EU legislation.
The EU's Lisbon Treaty aims to make the EU a member of the Council of Europe. The main reason for doing that is to prevent any conflict between ECHR rulings and judgments by the European Court of Justice (ECJ), which is the EU's top court.
The ECJ, like the ECHR, relies on the European Convention when it adjudicates in disputes affecting the rights of EU citizens, companies or institutions.