Reforming the European Court of Human Rights – the new Protocol 15

The Committee of Ministers of the Council of Europe has adopted Protocol 15 to the European Convention of Human Rights. It will be opened for signature at the end of June and will enter into force three months after all states parties have ratified it. The Protocol:

  • adds at the end of the Preamble of the Convention a reference to the principle of subsidiarity and the doctrine of the margin of appreciation;
  • reduces from six months to four the window during which an application must be made to the Court;
  • amends the “significant disadvantage” admissibility criterion to remove the safeguard preventing rejection of an application that has not been duly considered by a domestic tribunal;
  • removes the right of the parties to object to a Chamber’s relinquishing jurisdiction to the Grand Chamber; and
  • requires that candidates for the judiciary be under 65 on the date by which the candidates’ list has been requested by the Parliamentary Assembly (which elects the judges).

Perhaps the most crucial element is the addition to the Preamble to the Convention of specific mentions of subsidiarity and the margin of appreciation, 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”.

This, in the words of the accompanying Explanatory Report,

“… is intended to enhance the transparency and accessibility of these characteristics of the Convention system and to be consistent with the doctrine of the margin of appreciation as developed by the Court in its case law. In making this proposal, the Brighton Declaration also recalled the High Contracting Parties’ commitment to give full effect to their obligation to secure the rights and freedoms defined in the Convention”.

Comment

In short, the new Protocol implements some of the agenda of the Brighton Declaration – but not immediately.

So far as Article 9 is concerned, one can only speculate as to the difference that the new Protocol might have made had it been part of the original Convention. The suspicion is that it would have made no difference whatsoever to the outcome in Eweida & Ors (a guess which is reinforced by the fact that leave to appeal to the Grand Chamber has just been refused) but it might conceivably have avoided the necessity for the Grand Chamber hearing in Lautsi.

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