2.8.2021 11.45 Vierashuoneessa Prof. Dr. Stefan Kirchner, MJI, RA: Protocol 15 to the European Convention on Human Rights had entered into force
On 1 August 2021, Protocol 15 (P15) to the European Convention on Human Rights (ECHR) entered into force. Unlike some of the other protocols to the ECHR, that add to the Convention, P15 has led to substantial changes of the text of the ECHR. Many of these changes finally codify developments which have been in the making for decades. While it has long been held that the ECHR has to be applied in the interpretation given to it by the European Court of Human Rights (ECtHR), significant developments created by the Court, such as the doctrine of the margin of appreciation and the subsidiarity concept, are now mentioned in the text of the revised Convention expressis verbis. In the following, the readers will be introduced to the key provisions of the Protocol. The focus will be on the substantive Articles 1 to 5 P15 because Articles 6 to 8 P15 only include transitional and technical norms, such as the exclusion of reservations and rather standardized rules in treaties drafted by the Council of Europe (CoE). Because of the recent entry into force of P15 and its practical importance for litigation at the ECtHR, it is the purpose of this short text to provide the readers with a first overview rather than an in-depth analysis.
Article 1 P15: Explaining the workings of the Convention organs
Article 1 P15 adds a new recital to the preamble of the ECHR that explains the principle of subsidiarity, the primary responsibility of the states that are parties to the ECHR for the implementation of the Convention, the margin of appreciation enjoyed by states in the execution of this obligation which has its origins in Article 1 ECHR, and the supervisory role of the ECtHR. The newly added recital reads 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 Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention” (Article 1 P15). This addition, while ‘only’ contained in the preamble of the ECHR, is important because it explains essential elements of the way the European human rights systems works also to the casual reader. In part also due to the lack of a requirement to be represented by legal counsel when submitting an application to the ECtHR, the Strasbourg court has long been drowning in its case load. In recent years, several efforts have been undertaken with the aim of reducing the case load of the ECtHR. Unfortunately, often this took the form of making it more difficult to bring a case to the European Court of Human Rights. The addition to the preamble, which had been adopted already in 2013, in the wake of the 2012 Brighton conference (a connection which the European Court of Human Rights itself has emphasized in its opinion on P15, https://www.echr.coe.int/Documents/2013_Protocol_15_Court_Opinion_ENG.pdf), and has to be seen in the same context of reducing the Court’s workload, is a welcome measure because it explains, succinctly and in a clear manner, while highlighting core legal concepts of European human rights law. Article 1 P15 does not bring substantive changes but updates the preamble of the ECHR by bringing it more in tune with the reality of the work of the Court. More than seventy years after the creation of the Convention, and more than eight years after P15 had been adopted, this informative addition to the preamble has long been overdue.
Article 2 P15: Judges
Article 2 P15 leads to changes in Articles 21 and 23 ECHR regarding the criteria for persons to hold the office of judge of the European Court of Human Rights and concerning the terms of office. The former paragraph 2 of Article 23 ECHR has been removed by Article 2 paragraph 3 sentence 1 P15. Paragraphs 3 and 4 of Article 23 ECHR have been renumbered accordingly (old: 3 and 4, new: 2 and 3) based on Article 2 paragraph 3 sentence 2 P15. Instead, Article 2 paragraph 1 P15 adds a new paragraph 2 to Article 21 ECHR. Article 2 paragraph 2 P15 renumbers the following paragraphs of Article 21 ECHR accordingly (old: 2 and 3, new: 3 and 4). According to the Council of Europe’s Explanatory Report to P15 (https://www.echr.coe.int/Documents/Protocol_15_explanatory_report_ENG.pdf) the newly added paragraph 2 of Article 21 ECHR now provides more clarity regarding the age limit for judges. It reads as follows: “Candidates shall be less than 65 years of age at the date by which the list of three candidates has been requested by the Parliamentary Assembly, further to Article 22.” This change is meant to reduce uncertainties during the selection process and Article 8 paragraph 1 P15 clarifies that this change only applies to new selection processes. The other rules regarding judges have not been changed. While the change can reduce uncertainties, the expected impact on the practical work of the ECtHR should be minimal.
Article 3: Easier relinquishment of cases to the Grand Chamber
The Grand Chamber (GC) of the ECtHR secures the coherence of the Strasbourg case law. Today, decisions by the GC are exceptional and indicate a certain level of importance of a case for the overall case law of the ECtHR. Article 30 ECHR concerns the procedure under which a case can be transferred to the GC. Until 31 July, parties involved in the case could object to such a transfer. While applicants might want to object to a transfer to the GC due to concerns over the length of proceedings, it seems likely that this is more a concern for states as cases before the GC commonly involve more media attention. It is now no longer possible for parties to a case before the ECtHR to prevent a transfer of the case to the Grand Chamber because Article 3 P15 deleted the words “unless one of the parties to the case objects”, that earlier were contained in Article 30 ECHR. According to Article 8 paragraph 2 P15, this change does not apply to cases which are currently pending at the ECtHR and in which there had already been an objection under the old version of Article 30 ECHR prior to the entry into force of P15.
Article 4: Four months deadline
The most important change imposed by P15 affects the deadline for submitting applications to the ECHR. Until 31 July 2021, the deadline imposed by Article 35 paragraph 1 ECHR was six months after the final decision on the national level, for example a national Supreme Court judgment against which no further appeal was possible in domestic law. Article 4 P15 now has changed this time limit for applications to four months.
It is important to note that neither Article 8 paragraph 3 P15 includes a transitional norm. According to Article 8 paragraph 3 sentence 1 P15, the deadline change only applies six months after the entry into force of P15 and Article 3 paragraph 3 sentence 2 P15 clarifies that the old six months deadline continues to apply to those applications to the ECtHR which relate to final decisions which have been taken prior to the entry into force of P15. A (hypothetical) unappealable national supreme court decision on 31 July 2021 therefore leads to a deadline of 31 January 2022, while the same decision taken a day later, i.e., once P15 had entered into force, would lead to a deadline on 1 December 2021. The four months deadline therefore does not apply retroactively.
For the practice of litigation at the European Court of Human Rights, this change is certainly the most important change caused by the entry into force of P15. In light of the procedural and practical changes in recent years, such as the required use of the application form, this change should not pose insurmountable obstacles for applicants and their lawyers. The reduction of the available time for an application is not so severe as to make applications more difficult. Given the existence of significantly shorter time limits in appeals systems in many national legal systems across the almost fifty states which are parties to the ECHR, the four month limit is neither unsual nor unfair. The introduction of the application form a few years ago already has made applications to the ECHR significantly easier also for applicants who are acting on their own behalf and who are not represented by legal counsel. Attorneys, of course, have to be aware of this important change in order to ensure compliance with the procedural rules applicable to applications to the European Court of Human Rights, also in order to prevent liability claims by their own clients. It is therefore essential to take the new time limit into account.
Article 5: Significant disadvantage
Due to Article 5 P15, Article 35 paragragh 3 lit. (b) ECHR now reads as follows:
“The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: [...] (b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits.” This restriction, which is meant to reduce the workload of the European Court of Human Rights, has now been tightened even more. In the past, the norm required that an application which was to be dismissed in such a manner would have had to have been examined by a domestic court. This requirement no longer exists. Now, Article 35 ECHR includes a strict version of the principle de minimis non curat praetor, which as also the intention behind this change, as was indicated by the Council of Europe in the aforementioned explanatory report on P15.
From the perspective of a practising attorney handling cases in Strasbourg, this change continues the post-Brighton trend of making the ECtHR less and less accessible to litigants. While the aim behind these restrictions, ensuring that the ECtHR continues to be able to function, is essential for the effectiveness of the Strasbourg Court, there would have been alternatives to the restriction of access to the Court. These alternatives, however, would have been more costly for the states which are parties to the ECtHR, for example increasing the number of judges per state from one to two or three and, importantly, the number of the highly qualified staff members who conduct the bulk of the work conducted at the Court.
Impacts on the practice of human rights litigation in Strasbourg
P15 is part of the heritage of the Brighton process and continues the trend towards higher procedural hurdles for litigants. On the other hand has the Court taken measures which are meant to make it easier to submit applications to the Court, for example by providing application forms. Like information for potential applicants, the application form is also available in multiple languages, albeit primarily in national languages of the states that are parties to the ECHR (with the notable exception of Catalan) and not in minority or indigenous languages, which continues to constitute a disadvantage for native speakers of non-dominant languages.
Importantly, the ECtHR imposes specific technical requirements for the submission of the application form. At the moment, the application form (https://www.echr.coe.int/Pages/home.aspx?p=applicants/forms&c) requires either Windows or Mac OS X as well as Adobe Acrobat 9 or newer. Users of other operating systems, such as Google’s Chrome OS and of mobile devices (which are mostly running on Apple’s iOS and on Google’s Android operating systems) are currently de facto excluded from utilizing the application form, the use of which is no longer optional but is required by the Court. Currently, just over 45 % of all operating systems used in Europe are were OS X or Windows (https://gs.statcounter.com/os-market-share/all/europe). Even if one assumes a growth in relative user numbers of OS X and Windows among the people who live in the relatively affluent European nations that are parties to the ECHR, the importance of mobile devices not only for younger users and digital natives indicates that also in terms of technological platforms the Court will have to ensure that it remains up to date. It could be fatal for the reputation of the Court if it would be seen as disconnected from the reality of the people across Europe who depend on it. This, however, is a question which does not have to be resolved by a future protocol but a technial aspect of the work of the Court. This is an issue that the Court can, and should, deal with on its own. It is the responsibility of the states to ensure that the Court has the technology and personell which it needs to be able to do its job well into the 21st century. The Court has always shown a great flexibility in applying the Convention to the changing realities of life in Europe. With the entry into force of P15, an important milestone in the post-Brighton efforts to make the court more effective has been achieved. It is now time for the Council of Europe to ensure that the by the time the Convention will turn 75 in four years there will be a clear commitment to safeguard the future of the world’s most successful regional human rights system for the next 75 years and beyond.
The addition of the new recital to the preamble of the ECHR should be an inspiration for states to honor their primary duty to protect human rights on the domestic level. It is within the framework of states’ obligations under Article 1 ECHR that subsidiarity and margin of appreciation become relevant. Under the ECHR, states are expected to be the primary guardians of human rights. This duty has to be honored at all times.
Prof. Dr. Stefan Kirchner, MJI, RA
University of Lapland
Toimittaja: Jani Surakka, Edilex-toimitus (email@example.com)