The System of the European Convention on Human Rights And

The System of the European Convention on Human Rights And

Longer-term future of

the system of the European Convention on Human Rights and

the European Court of Human Rights

Open call for information, proposals and views

Context and purpose

The Council of Europe’s Committee of experts on the reform of the European Court of Human Rights is holding an open call for information, proposals and views on the issue of the longer-term reform of the system of the European Convention on Human Rights and the European Court of Human Rights.

This process follows on from the Brighton Declaration, adopted at a High-level conference in April 2012, and is intended to respond to the followinginvitations to the member States(which should be read and understood in the context of the Declaration as a whole):

  • consider the future of the Convention system, this consideration encompassing future challenges to the enjoyment of the rights and freedoms guaranteed by the Convention and the way in which the Court can best fulfil its twin role of acting as a safeguard for individuals whose rights and freedoms are not secured at the national level and authoritatively interpreting the Convention;
  • carry out a comprehensive analysis of potential options for the future role and function of the Court, including analysis of how the Convention system in essentially its current form could be preserved, and consideration of more profound changes to how applications are resolved by the Convention system with the aim of reducing the number of cases that have to be addressed by the Court;
  • initiate comprehensive examination of:
  • the procedure for the supervision of the execution of judgments of the Court, and the role of the Committee of Ministers in this process; and
  • the affording of just satisfaction to applicants under Article 41 of the Convention;
  • secure the participation and advice of external experts in order to provide a wide range of expertise and to facilitate the fullest possible analysis of the issues and possible solutions.

The process is therefore deliberately intended to be open and inclusive, allowing questions to be raised and examined concerning all aspects of the Convention system and the Court.

Information, proposals and views received through this process, along with other material, will initially be examined by a group composed of national experts, appointed by governments of Council of Europe member States, and ‘external’ experts. The results of this work will eventually be included in a report of the Steering Committee for Human Rights (CDDH), to be submitted by 15 April 2015 to the Council of Europe Committee of Ministers.

Procedure

The consultation process is open to everyone, subject to certain basic procedural requirements:

-Contributions should be submitted in English or French, the official languages of the Council of Europe. Contributions in other languages will not be taken into account.

-Contributions should be submitted on the form attached to this document and provideall requested information.

-Contributions should be accompanied by a brief summary(200 words maximum) of the main points raised.

-Where possible, contributors should indicate, from amongst the suggested list,the topic(s)to which their contribution seems most relevant.

-Contributors may presume technical expertise on the part of their audience and need not give explanations of common concepts.

-Contributions should address questions of general policy. Contributions that relate to individual Court cases, past or present, will not be taken into account.

-Contributions should be as short as possible. They neednot include details of the contributor’s experience, expertise or qualifications; this information may be providedon the form. For any given content, the more concise the contribution, the greater will be its likely impact.

-Contributions should be self-contained and not include additional material in appendices or attachments; if submitted, these will not be taken into account.

-Contributions should be presented in Word format, in a single document with the attached form, and submitted by email to this address.

In principle, all contributions received will be published on the website Please indicate on the form if you do not wish your contribution to be published.

The group of experts may invite persons whose contributions it finds particularly interesting to participatefurther in its work, either through follow-up questions or by way of attendance at a day’s meeting (probably in Strasbourg, France). Please indicate on the form whether or not you would be willing to participate further in response to follow-up questions or an invitation to attend a meeting.

The deadline for submitting contributions is mid-day (12 p.m., French local time) on Monday 27 January 2014. Contributions received after that will not be taken into account.

Longer-term future of

the system of the European Convention on Human Rights and

the European Court of Human Rights

Open call for information, proposals and views: submission form

Name (surname, forename): / Chris Johnson
E-mail address: /
Nationality/ country of residence: / England
Relevant qualifications/ experience: / Solicitor
Please indicate whether you are acting in an individual capacity or on behalf of an organisation; if the latter, please indicate which: / Submission made on behalf of Community Law Partnership (CLP) solicitors
Check this box if you do not wish your contribution to be published by the Council of Europe:
Check this box if youdo notagree to receiving follow-up questions concerning your contribution:
Check this box if you would notbe willing, if invited, to attend a meeting to discuss your contribution further:
Summary of the main points (200 words maximum): / CLP specialises in housing and public law and represents homeless people, tenants facing eviction, Gypsies and Travellers seeking sites or facing eviction, and other vulnerable groups. The ECHR is a cornerstone of our work and a vital protection for these groups. We think it is essential that it is maintained and strengthened for the reasons given in this paper.
Check the box(es) of the topic(s) that correspond most closely to the content of your contribution: / Future challenges to the Convention system
Subsidiarity
Implementation of the Convention at national level / x
Execution of Court judgments / x
Council of Europe technical support and assistance to States
Mechanisms required at the European level to ensure effective protection of individual rights and authoritative interpretation of the Convention / x
Margin of appreciation
Interaction between the Court and national judicial systems / x
Role of the Court in interpreting the Convention / x
Right of individual application to the Court/ right to a judicial decision / x
Admissibility criteria
Clearly inadmissible applications
Repetitive applications
Alternative dispute resolution
Restoring the position of the victim of a violation (including the award of just satisfaction (compensation) by the Court)
Rules of Court
Internal organisation of the Court (including the case-management system)
Status and judicial composition of the Court
Supervision of the execution of Court judgments: role of the Committee of Ministers / x
Supervision of the execution of Court judgments: powers and procedure
Other issues/ none of the above

CONTRIBUTION:

The European Convention of Human Rights and Fundamental Freedoms (ECHR) was adopted in 1950 by the Council of Europe and sprang from the horrors of the Second World War. At the heart of those horrors was the Holocaust in which 6 million Jews were killed in Nazi concentration camps. However (in an event known in Romani as the Pjoramos – or the Devouring), an estimated ½ a million Roma, Gypsies, Sinti and other Travellers were also killed in the concentration camps. During the Second World War, countries across Europe and beyond Europe witnessed what can happen when there are no controls on the exercise of Government power. In the aftermath of the Second World War, various European Governments drafted the ECHR. The Government of the United Kingdom played a significant role in drafting the ECHR. The ECHR aims to ensure coherent and consistent protection of Human Rights for the 820 million people in the 47 countries of the Council of Europe, including the UK. The rights include the rights to life, to liberty, to respect for home and family, freedom from torture and freedom of expression.

Over the years the Court’s decisions have led Governments across Europe to change laws and practices in a wide range of areas, including:-

  • The UK (as well as France and Spain) passed laws to regulate telephone tapping;
  • Ireland decriminalised homosexual acts;
  • The UK banned corporal schools and birching on the Isle of Man;
  • Belgium prohibited discrimination against children born outside of marriage;
  • Bulgaria created an alternative to military service for conscientious objectors;
  • Greece improved detention conditions for foreigners awaiting deportation;
  • The Netherlands changed laws on detaining people with mental health problems;
  • Russia improved the social welfare measures for the victims of Chernobyl;
  • Slovenia made changes to prevent ill-treatment by the Police;
  • Moldova recognised freedom of religion.

In recent years the Court has undergone a major process of reform, partly to help it deal with a large backlog of cases. For example, measures to increase the efficiency of the Court came into effect in 2010, such as allowing a single Judge to strike out applications to the Court and allowing a smaller number of Judges to deal with less complex cases.

The European system of the ECHR and the European Court of Human Rights (ECtHR) is seen as the gold standard of human rights protection across the globe. It has seen 60 years of the protection of the human rights of the 800 million people in the 47 countries of the Council of Europe and is something to be celebrated and built upon. The ECHR and ECtHR remain an important and powerful symbol of the determination across Europe to uphold Human Rights as the cornerstone of a healthy democracy. The ECtHR’s caselaw makes the ECHR a powerful living instrument able to adapt to changes in society since the ECHR was adopted in 1950. This is a very important and positive aspect of this system of protecting human rights.

Whilst recognising that there might be more that could be done to improve the ECtHR’s efficiency, any future changes should strengthen the ECtHR as an independent human rights court and not undermine its powers in anyway. A robust, independent Court, monitoring respect for the human rights of the 800 million people across Europe, is absolutely vital. This means that its judgments should remain binding on States, that all Member States of the Council of Europe should continue to be obliged to accept the jurisdiction of the ECtHR and individuals should continue to be able to make petitions to the Court to complain that their rights have been interfered with. There should be no further weakening of the ECtHR’s powers or working procedures.

The ECtHR has already undergone several reforms in recent years, some of which are yet to take force. These reforms should be allowed to bed down and take effect before considering further change.

We will concentrate in the rest of this submission on one particular aspect of the ECHR which is of fundamental importance to our clients, namely article 8.

In October 2000 the UK incorporated the majority of the provisions of the ECHR into UK law, allowing individuals to rely upon those rights in our domestic courts for the first time. There were attempts by the Gypsy & Traveller community to rely upon article 8 to challenge the then domestic law which allowed for the summary eviction of Gypsies & Travellers from local authority run sites (the only provision for social accommodation for this community within the UK). These failed domestically, the domestic courts purporting to correctly apply the Convention but, in fact, failing to do so, see Connors v United Kingdom, no. 66746/01, 27 May 2004 paras 41 – 53. That this was so was made clear when the ECtHR gave judgment on this issue in Connors.

Following Connors there were domestic attempts to ensure that the procedural protections required by article 8 and described by the Court in Connors were applied in other cases – not just Gypsy and Traveller cases, of course, but cases involving others in dire housing need. Domestically, these were, initially, a failure, as the UK courts consistently sought to limit the effect of the ECtHR’s judgments: Harrow London Borough Council v Qazi [2003] UKHL 43; [2004] 1 AC 983, andKay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465.

Again, the importance of the Court’s role in protecting individual rights and in providing an authoritative interpretation of the Convention was vital. Following Connors,the Court gave a series of judgments which set out the proper interpretation of article 8 in terms of possession actions (Blecic v Croatia (App no 59532/00), 29 July 2004, McCann v United Kingdom (App no 19009/04), 13 May 2008, Cosic v Croatia (App no 28261/06), 15 January 2009, Zehentner v Austria (App no 20082/02), 16 July 2009, Paulic v Croatia (App no 3572/06), 22 October 2009 and Kay v United Kingdom (App no 37341/06), 21 September 2010. These judgments eventually ensured the consistent interpretation of the Convention because the UK Supreme Court finally accepted that the ECtHR’s view was overwhelmingly clear and gave effect to article 8 as providing a right (in principle, at least) to a defence in a possession cases regardless of domestic notions of tenure and ownership in Manchester CC v Pinnock [2010] UKSC 45; [2011] 2 AC 104.

The role of the Court in protecting and interpreting individual rights is vital. As the above history makes clear, relying upon national courts to interpret the Convention itself is inadequate and results in erroneous decisions. Reliance upon national courts to interpret earlier, authoritative decisions of the ECtHR is likewise inadequate, as the long history of cases in the UK after Connors makes very clear. The ECtHR must remain actively involved in individual cases. Only if the right and ability of individuals to take a case to the Court is protected can individual Convention rights be adequately protected and only by way of an individual right of petition to the Court can consistency of interpretation across the Convention’s signatory states be ensured.

For the most disadvantaged minorities within the Convention area, ongoing access to the Court in individual cases is essential.

The UK’s Gypsy & Traveller populations have benefitted substantially from the, albeit incomplete, implementation of the Convention in the UK via the Human Rights Act 1998. The ability to rely upon Convention rights in domestic proceedings is enormously valuable and has resulted in legislative changes of benefit to whole sections of the Gypsy & Traveller population, e.g. the provision of effective security of tenure for persons living on local authority run Gypsy & Traveller sites via inclusion of local authority Gypsy/Traveller sites (at last) within the provisions of the Mobile Homes Act 1983. This development occurred precisely because of the Connors case.

We would, however, point out that implementation of the Convention at a national level is not an alternative to the role played by the ECtHR at present. As the history set out above illustrates, domestic attempts to rely upon and enforce Convention rights by Gypsies & Travellers and others in housing need relying upon the Human Rights Act 1998 either failed or were only partially successful. Despite domestic implementation of the Convention, the judgments of the ECtHR itself were decisive and were of pivotal importance. It was the decision of the ECtHR in Connorsthat resulted in the provision of effective security of tenure for Gypsies & Travellers living on local authority sites. It was that decision and the subsequent decisions of the ECtHR that eventually forced the UK’s domestic courts to accept that the protection of article 8 should, in principle, be available to all.

While we would welcome further implementation of the Convention within the UK and would consider it a positive step in other Contracting States, it is not, and must not be thought to be, an alternative to the protection and interpretation of individual rights by the ECtHR.

We would welcome improvements in the procedure for the implementation of court judgments. It is the experience of the Gypsy & Traveller communities that national authorities can take wholly unreasonable periods of time before bringing domestic law into conformity with the Convention following a decision of the ECtHR. Once again, we cite the case of Connors. The ECtHR’s decision was given on 27th May 2004 and made it immediately clear that the exemption of local authority Gypsy/Traveller sites from security of tenure was incompatible with article 8. We do not believe that the amendment of the law required was particularly complex. However, the Mobile Homes Act 1983 (which provides the requisite protection) was not extended to cover English Gypsy/Traveller sites until 2011 and was not extended to cover Welsh sites until 2013.

We would welcome changes which resulted in faster implementation. We suggest that consideration might be given to a timeframe for compliance being set down by the Court following judgment in cases in which positive action is required by the contracting state.

We do not believe that this would be contrary to the principle of subsidiarity as the nature and method of any amendment of the domestic legal system would remain the decision of the Contracting State. We believe that tighter and more rigorous enforcement of the Court’s decisions is in accordance with the Convention, in particular with the obligation on states to provide an effective remedy at the national level.

Community Law Partnership

21st January 2014

We would like to thank the British Institute of Human Rights and Garden Court North Chambers for their great assistance.