Essay question

Explain and analyse the reforms of the complaints system under the European Convention on Human Rights.

Sample answer

The Council of Europe was formed after the Second World War as a response to the atrocities carried out. The European Convention on Human Rights was signed by European States in the hope such human rights abuse would not happen again. There are 47 member States in the Council of Europe. The European Court of Human Rights allows for individual petition to the Court from citizens within the Council of Europe although this wasn’t always the case. The European Court of Human Rights has been seen as the most successful international body dealing with human rights violations. It is often called a ‘victim of its own success.’ Figures for the Council of Europe demonstrate this. With over 800 million people living in the Council of Europe, it is not surprising the Court has had many applicants before it. However, this has caused problems. The end of the Cold War led to a massive expansion in the numbers who could access the Court. Also, the types of cases coming before the Court expanded. By the late 1990s the Court had a significant backlog of cases before it, with some applicants waiting for years for their case to be heard.

The Council of Europe set up a committee (Committee of Wise Persons) to investigate ways in which the complaints system could be improved. It was decided to establish a new Protocol to reform the procedures. Protocol 14 was introduced to provide further reform, although it did not come into force until 2010 as Russia had refused to ratify until 2010. (Protocol 14bis was devised as a temporary measure).

Protocol 11 was developed before Protocol 14 in order to attempt to deal with the problem of backlog. Over 90% of cases fail at the admissibility stage. Protocol 11 changed the procedures to make it simpler and faster. It abolished the Commission of Human Rights, which decided on admissibility. The new Court of Human Rights was divided into two chambers and a three judge committee, which decided on admissibility. However by 2005, the backlog seemed to be increasing.

Protocol 14 further revised the admissibility procedures. The three judge panel was changed to one judge, who would decide on admissibility. The reasoning for this was that it would improve efficiency. Despite the safeguards put in place such as providing administrative support and not allowing a judge from the defendant State to make a decision, this change has been criticised as possibly giving rise to bias and mistakes that would not happen with three judges. (See Amnesty International report on P14, Mowbray). Another change designed to quicken up the court’s procedures is the three judge committee for repetitive claims. This committee can hear the merits of cases, which have already substantially been before the Court. This should cut down on repetitive claims, which take up a lot of the Court’s time. However, this committee has been criticised as reducing the right of an individual to redress.

Protocol 14 also introduced a new admissibility criterion under art 35 of the ECHR. These criteria limit the number of cases that get to the Court and a new criterion may limit this further. An applicant now has to demonstrate that ‘significant disadvantage’ was suffered because of a State measure. Again, this has been criticised by Amnesty International and others for limiting the access to justice of individuals. Those in favour of the measure argue that it will further cut down on trivial claims.

In recent years, these attempts at reform have resulted in a better structure for the complaints system. The Court has also tried to improve efficiency by using the pilot judgment procedure (Broniowski v Poland). Although there is still a backlog, the numbers have been significantly reduced since 2013. (See Council of Europe figures). However, further reform has been suggested through the ‘Interlaken process.’ The Interlaken Conference and the Izmir Conference both produced recommendations on further reform though no binding agreements have been reached. This was followed by the Brighton Conference in 2012. Several recommendations were made which have led to the new Protocol 15 of the ECHR, which was agreed in 2013. It is not yet in force. The new Protocol will shorten the time limit for applications to the Court to four months as well as put the concept of subsidiarity and margin of appreciation into the preamble of the Convention. It is hoped that these reforms will emphasise the role of States in ensuring human rights protection, and continue to make the process more accessible. Protocol 16 has also been agreed. It will introduce a non-binding advisory opinion process, which it is hoped will improve the relationship between the Court and the States, and further the goal of greater subsidiarity. The Brussels Conference in 2015 further highlighted the issue of subsidiarity and better cooperation between national Courts and the ECtHR. The Court has undertaken reforms without the need for structural reform such as hiring more lawyers and streamlining the application process, as well as setting up meetings between domestic constitutional courts and the ECtHR (see reports of the Steering Committee for Reform and ECtHR reports.)

To conclude, the European Court of Human Rights has proved successful in dealing with human rights violation in Europe. As O’Boyle notes, it is the most successful human rights Court. However this success led to a huge backlog, which undermines individual redress to the Court. Protocol 14 has decreased this backlog and Protocol 15 and 16 has initiated further reform. It is yet to be seen if these reforms will further reduce the backlog and lead to greater dialogue between the Strasbourg and national authorities.

Feedback

This is a good answer, which demonstrates good knowledge and an understanding of why the reforms have taken place. There is also an attempt to bring the arguments together in a conclusion. The essay attempts to criticise as well as describe, with some evidence of critical reading. The essay could be improved:

• The introduction is partly relevant but the first few lines do not address the question that is set and are unnecessary. An introduction should be concise and be clear as to how the question will be answered.
• When discussing the ECHR avoid the use of ‘citizens.’ Everyone within a State’s jurisdiction is entitled to protection under the Convention including non-citizens.
• The content is good but could be expanded on. Protocol 11 could be described in more detail and some more figures may help. The fact that the changes limit individual redress is correct but could be expanded on. What is the role of the European Court of Human Rights? Is it about individual redress or should it be a Court of supervision (and so limit the cases to the most important)? Or can it do both? The essay could also mention tensions between domestic jurisdictions and the ECtHR – as a small number of States not complying with obligations such as UK (Hirst) and Russia.
• Use of criticisms: There is an attempt to criticise the reforms using sources – a bit more of this would increase the mark. Instead of writing ‘others’ to refer to critics, more marks will be gained by naming one of the academics etc. Good use of academic writing or reports as well as case law demonstrates independent reading and thought, and an ability to do more than merely describe the law.
• Structure: some of the essay is well structured. The argument is logical and makes sense. However, the essay discusses the Committee to investigate further reform with regard to P14 before discussing P11. This is illogical. The lack of success of P11 led to the Committee discussing P14 so P11 should be discussed first
• The conclusion is good as it attempts to bring the essay together. However, this could be expanded on. An ability to expand on this would increase the mark – for example, noting the debate over the Role of the Court.
• Overall, this was a good answer but a bit short for a 45-minute question in an exam.