The European Court of Human Rights: protector of civil rights and libertiesJanuary 31, 2012 - nr.18
Letter of March 2012 from the Minister of Foreign Affairs, in conjunction with the Minister of Security and Justice, to the Senate containing the government’s response to the AIV advisory letter of 21 November 2011.
On 21 November 2011 the government received an advisory letter from the Advisory Council for International Affairs (AIV) entitled ‘The European Court of Human Rights: Protector of civil rights and liberties’. The advisory letter was published on the AIV’s own initiative, in response to the government’s letter of 3 October 2011 concerning the European Court of Human Rights and the European Convention on Human Rights (ECHR), Parliamentary Papers 32 735, no. 32 (2011-2012).
The Minister of Security and Justice and I hereby present the government’s response. The government notes that the AIV shares the government’s concern that the functioning of the ECHR in the long term is not sufficiently guaranteed due to the large number of cases instituted and the backlog. It is essential that these be reduced. The AIV also agrees with the government that the principle of subsidiarity is an important pillar of the ECHR system, that the application of the Practice Directions drafted by the Court must be supported, that consideration of cases in which the Court imposes interim measures can be quicker and requires improvement, and that the pilot judgment procedure and enhanced supervision of the execution of the Court’s judgments in cases in which it has identified structural defects in national legal systems are important.
In addition, the AIV expresses concern about a number of the government’s proposals. The response below deals in turn with the subjects covered in the advisory letter: interim measures, subsidiarity, the Court’s case law, the role of the Committee of Ministers, access to the Court and the accession of the EU to the ECHR.
The AIV considers that the government’s suggestion that the growing number of interim measures is largely attributable to the Court’s backlog is not entirely correct.
The AIV concludes from the nature of requests for interim measures and the increase in their number that asylum seekers feel compelled more frequently than in the past to apply to the Court. The AIV questions whether the policy and procedures that are in place at national level to enable asylum seekers to object to expulsion are sufficiently ‘Strasbourg-proof’. The AIV considers that further research is called for into the causes of the relatively high number of requests for interim measures, and of successful requests, against the Netherlands.
In response to the AIV’s comments, I note first that when drafting the letter of 3 October 2011 use was made of the figures for 2010. There was a steep increase in requests for interim measures in that year. The 2011 figures are now known and these indicate that substantially fewer interim measures were imposed in that year. In 2010, 177 interim measures were granted against the Netherlands, whereas this figure dropped to 37 in 2011.
It would now appear that the high figure in 2010 was closely related to the Dublin issue. In complying with the Court’s judgment in M.S.S. v. Belgium and Greece, the Minister for Immigration, Integration and Asylum Policy has decided to consider applications involving asylum seekers who have entered the Netherlands via Greece. This is a good example of how the government implements the Court’s judgments, even when they concern countries other than the Netherlands. This undoubtedly helps to reduce the Court’s workload.
The government has learned from the Court that at the end of 2011, as requested, the Court began to take decisions more quickly in cases in which interim measures were requested. This means on the one hand that as far as possible the Court submits applications in which an interim measure is imposed to the Member States for observations at the same time as the decision and, on the other hand, especially if an application is manifestly inadmissible, that the decision on the application itself is taken at the same time as the decision on the interim measure.
Subsidiarity and the Court’s case law
Since the AIV’s comments on these two subjects are closely connected, they will be discussed together here. The AIV concluded from the letter of 3 October 2011 that the government was of the opinion that the ECHR is subsidiary in nature and pointed out that it is not the ECHR that is subsidiary, but only the Court. As the AIV emphasised, it remains necessary to examine critically whether sufficient protection of human rights is built into the Netherlands’ own national rules and procedures.
The government points out that the ECHR comprises both human rights standards and a supervisory mechanism. To the extent that the AIV rejects the suggestion that the human rights standards are subsidiary, the government is in complete agreement. In its letter of 3 October 2011 the government referred exclusively to the supervisory mechanism. The subsidiary nature of the supervisory mechanism is expressed in various places in the ECHR, especially Article 1, which obliges States to secure to everyone within their jurisdiction the rights and freedoms enshrined in the Convention; Article 13, which obliges States to provide an effective national remedy against violations of the ECHR; and Article 35, paragraph 1, which states that an applicant must have exhausted all domestic remedies prior to resorting to the Court. Furthermore the Court’s own case law allows States a certain margin of appreciation in how they guarantee the rights and freedoms laid down in the ECHR at national level. The Court recognises this margin of appreciation in relation to all the provisions of the Convention, except the rights laid down in Articles 2 and 3 ECHR (the right to life and the prohibition of torture respectively). The government is of the opinion that in some cases there is room for a wider margin of appreciation. If the national authorities have explicitly applied the ECHR in a way that draws on the applicable case law of the Court in a reasonable manner, the Court should more frequently regard the case as having been satisfactorily dealt with and not proceed to address the case itself.
The government is not alone in concluding that the significance of the principle of subsidiarity should be considered further. The States Parties also collectively drew this conclusion in the Interlaken and Izmir Declarations.
The Steering Committee for Human Rights (CDDH) of the Council of Europe stated its position on this issue in a letter to the Court’s jurisconsult on 16 December 2011, which said, amongst other things, that the national authorities are in principle best placed to determine how to guarantee observance of the rights laid down in the ECHR. In particular, the CDDH did not see a role for the Court’s case law as an instrument to achieve legal harmonisation in the manner in which the ECHR is applied by the Member States.
The CDDH also said that the margin of appreciation is an important instrument, whereby the Court is able to give substance to the principle of subsidiarity. This means, for example, that the Court must accord considerable weight to the considerations of the national authorities, including parliaments.
According to the CDDH, the Court should in principle not doubt the assessment of the facts, unless an evident mistake has been made. In principle the Court should not take into consideration developments that took place after the national decision. The Court should indeed review national law in the light of the ECHR, but should not interpret national law itself.
From the abovementioned passages from the CDDH’s letter it is clear that the Netherlands does not stand alone: the Dutch proposals enjoy broad support across the Member States.
Furthermore, it is essential that voices be raised within the Court itself in support of the government’s vision. A minority of judges expressed a similar view recently in a dissenting opinion in the judgment in the case of Axel Springer vs. Germany.
The role of the Committee of Ministers (CM)
The AIV considers a healthy dynamic in interaction between the Court and the Member States of the Council of Europe indispensable. According to the AIV, ‘The Court’s task, in a sense, is to criticise those in power, and it must retain this role’. The Committee of Ministers must not, however, issue guidelines that are at odds with the Court’s task of independent assessment. Furthermore the AIV believes it is essential that Member States should be prepared to call each other to account, at meetings of this Committee specifically concerned with human rights, regarding the proper execution of the Court’s judgments.
The government’s proposal for a stronger role for the Committee of Ministers is not intended to ‘curb’ the Court, but instead to strengthen it as a component in a system of checks and balances such as exists in the national legal order. This would enable the Member States to protect the Court against the criticism that it does as it pleases without opposition. In order to increase the Court’s democratic legitimacy, the government wants to ensure it is not operating in isolation. Dialogue between the Court and the Member States should be encouraged in several ways, to reduce the gap between the Court and socio-political realities in the Member States.
The first point at issue is the role of the Committee of Ministers in the supervision of the execution of the Court’s judgments by the Member States. Decisive action by the CM in this role will have a direct effect on the Court’s workload, especially on the unacceptably large number of repetitive applications. These are after all applications that should not actually be brought before the Court at all, because it has already ruled on the underlying legal question in an identical case, so that the Member State is aware of what it should do to avoid repeat applications. A recent change in how the execution of the Court’s judgments it supervised will improve matters, as it will lead to greater emphasis on combating the structural defects found in national legal systems. An example is the Italian problem of lengthy legal proceedings, to which the Netherlands has often drawn attention in the Committee of Ministers.
Secondly, the Committee of Ministers can also play a role in clarifying the rights enshrined in the ECHR, for example in an evolving society. As a political organ, the CM is fully entitled to give its views on the content of the Convention. The Court’s case law is often based on resolutions of the CM that contain views of this kind. In this way a healthy balance is achieved between the respective responsibilities of the judicial and executive powers within the Council of Europe. The point at issue here, therefore, is not individual cases, but subjects that transcend individual cases and are essential to the political debate about the Court, see for example the abovementioned letter from the CDDH.
As indicated in the letter of 3 October 2011, the CM should never be permitted to express its opinion concerning cases that are still pending before the Court and will – as is the case at national level – be required to display a certain level of restraint, in the interests of the judicial impartiality of the Court.
Access to the Court
The AIV emphasises that the right of individual petition is an essential feature of the ECHR. Easy access to the Court should be part of this. Obstacles are therefore undesirable. The AIV believes that solutions to the workload problem should preferably be sought in improving the efficiency of the processing of the numerous ill-founded applications and of the internal operating procedures. The AIV underscores the principle that a good filtering mechanism is required that meets the standards of the independent and impartial administration of justice. Final responsibility for decisions should rest with the Court, according to the AIV. The AIV expresses its concern regarding three of the government’s proposals for restricting access to the Court:
- imposing fines on litigious applicants;
- disciplinary measures against lawyers; and
- introduction of court fees.
The government is of the opinion that the development of constitutional uniformity in Europe has not yet advanced to the point where the right of individual petition can be abandoned. The Netherlands will examine solutions in the Council of Europe within the framework of the right of individual petition.
The government believes easy access to the Court to be important. The victims of the most serious human rights violations should always be able to have recourse to the Court, regardless of their financial situation. The current system has, however, proven unsustainable since more than 90% of all the applications submitted are declared manifestly ill-founded by the Court. For this reason there must be a strong incentive for applicants to reflect before submitting an application to the Court. Accordingly, the government favours the introduction of a realistic court fee.
The government is proposing not a cost-covering court fee, but a ‘realistic’ fee linked to the actual costs that the Court must incur to dispose of an application. The government has previously indicated that the introduction of a court fee must go hand in hand with safeguards, such as categories of cases that should be exempt, as is the case in national legal systems; differing rates for different countries, given the widely differing standards of living among the High Contracting Parties; and for example a guarantee that applicants should be able to recover court fees if their applications are not among the 90% of manifestly ill-founded cases.
The government supports the German proposal to fine applicants who submit a manifestly ill-founded application on more than one occasion. This proposal is, of course, accompanied by several significant safeguards. For example, it is for the Court to impose the sanction and determine the amount of the fine. If an applicant does not pay the fine, future applications submitted by him or her would not be dealt with. The proposal would include an exception for future applications concerned with the so-called ‘core rights’, such as the right to life and the prohibition of torture.
At national level the government wishes to examine whether disciplinary measures can be taken against applicants’ lawyers. Here, the government is referring to lawyers who submit a repeat request to the Court for the imposition of an interim measure after a previous request has been rejected and no new facts or circumstances have emerged, or to lawyers who submit a request to the Court even though the alien has voluntarily returned to the country of origin or departed for a third country.
The Minister of Security and Justice will contact the Netherlands Bar Association and other institutions such as the Legal Aid Council to examine whether such situations can be prevented as far as possible.
Accession of the EU to the ECHR
The AIV urges the government to hold firm to the approach previously adopted and support the accession process without qualification. The AIV wonders why the government feels the need for so much detail at this stage.
In the letter of 3 October 2011 the government indicated that the Accession Agreement and the internal EU arrangements for the application of the Accession Agreement are closely interconnected and form a total package. Amongst other things, the internal EU arrangements will need to regulate how the legal process at the Court in Strasbourg will take place subsequent to accession. It is also important in this respect that accession should not in any way affect the current division of competences between the EU and its Member States. The government therefore regards it as essential that the agreements on this point are drafted in sufficient detail. The government can broadly accept the draft Accession Agreement. It does, however, understand the wishes of some other EU Member States, especially regarding the supervision of the execution of the Court’s judgments. This is currently a subject of discussion in Brussels and will later be on the agenda in the discussions in Strasbourg. A common EU position has to be adopted before the negotiations with the Council of Europe can be resumed. The EU Presidency has designated the negotiations with the Council of Europe as a priority and will do everything it can to ensure that an EU agreement can be submitted to Strasbourg as quickly as possible.