Henvendelse fra justitsministeren med materiale fra den Internationale ekspert konference om reform af det europæiske menneskerettighedssystem mv.

Programme
High-Level Expert Conference
2019 and Beyond:
Taking Stock and Moving Forward
from the Interlaken Process
Wednesday 22 to Friday 24 November 2017
Kokkedal Castle, Denmark
By the end of 2019, the Committee of Ministers must decide whether the measures already
adopted within the Interlaken Process have proven to be sufficient to assure sustainable
functioning of the control mechanism of the Convention or whether more profound changes
are necessary.
Approaching this deadline, the Danish Chairmanship wishes to facilitate a renewed
discussion on the future of the Convention system looking beyond the 2019 deadline.
At the Conference, representatives of Council of Europe Member States will meet with
judges of the European Court of Human Rights and officials from the Secretariat of the
Council of Europe, parliamentarians and national judges, as well as experts from civil
society to address both the immediate problems facing the Convention system and discuss
ideas for the long-term future.
The goal is to explore how the promotion and protection of human rights under the
Convention system can be developed and improved in both the short-term and long-term.
Following the main tracks laid out in the Interlaken Process, the Conference will address
both the question of how to ensure a more sustainable functioning of the Convention
system and discuss ways of strengthening the authority of the system.
In order to encourage a free and open discussion and the sharing of information,
discussions at the Conference will take place under the Chatham House Rule.
Europarådet 2017-18
ERD Alm.del Bilag 4
Offentligt
Wednesday 22 November
15:00-17:00 Participants arrive (sandwiches available)
18:00-18:05 Welcome to Kokkedal
Rasmus Kieffer-Kristensen
Head of Danish ECHR Initiative, Danish Ministry of Justice
18:05-19:30 Reflections on the Interlaken Process and a Look to the Future
Søren Pape Poulsen
Danish Minister of Justice
Guido Raimondi
President of the European Court of Human Rights
Frank Schürmann
Government Agent of Switzerland
Başak Çali
Professor of International Law at Hertie School of Governance and Director of the
Center for Global Public Law at Koç University
20:00 Reception followed by welcome dinner hosted by the Danish Minister of Justice
Thursday 23 November
07:00-09:00 Breakfast
09:00-09:45 1. The Caseload Challenge – How to Achieve a Balanced Throughput
Facilitator: Philip Leach
Professor of Human Rights Law at Middlesex University, solicitor, and Director of the
European Human Rights Advocacy Centre
Keynote speaker: Mikael Rask Madsen
Professor of Law and Director of iCourts, Center of Excellence for International Courts,
University of Copenhagen
‘The ECtHR Post Interlaken and Brighton: Taking Stock, Looking Ahead’
09:45-10:30 Breakout Discussions
 Dealing with systemic and structural problems – the case of prison conditions
 Pilot-judgments and the Burmych case – a new institutional balance?
 Admissibility on the road to Protocol 15
 The art of the possible: Setting ambitious, yet realistic goals for the future
10:30-11:00 Feedback from Breakout Discussions
11:00-11:30 Photograph followed by coffee/tea break
11:30-12:15 2. The Authority Challenge: Key Factors to Address
Facilitator: Isabelle Niedlispacher
Government agent of Belgium
Keynote speaker: Jonas Christoffersen
Director of the Danish Institute of Human Rights
‘Lessons Learned and New Perspectives on Human Rights Dialogue’
12:15-13:00 Breakout Discussions
 Selection and election of judges
 The need for a clear and commonly accepted framework – dynamic
interpretation and its limits
 Addressing the element of surprise – keeping member states informed and
involved
 Advocating the Strasbourg system – a shared responsibility
13:00-14:30 Lunch
14:30-15:00 Feedback from Breakout Discussions
15:00-15:30 Coffee/tea
15:30-16:15 3. Bolstering Authority through Communication and Participation
Facilitator: Mikael Rask Madsen
Professor of Law and Director of iCourts, Center of Excellence for International Courts,
University of Copenhagen
Keynote speaker: Ingo Venzke
Associate Professor of International and European Law and Director of the Amsterdam
Center for International Law
‘Justifying the ECtHR's Public Authority: Strategies of Procedural Legitimation
and Politicization’
16:15-17:00 Breakout Discussions
 Increasing third party interventions by member states
 Increasing third party interventions (amicus curiae) by civil society, NHRIs and
other interest organisations
 A new role for the Committee of Ministers?
17:00-17:30 Feedback from Breakout Discussions
19:30 Dinner (informal)
Friday 24 November
07:00-09:00 Breakfast
09:00-10:00 4. Towards an Age of Subsidiarity?
Facilitator: Kristine Lice
Government Agent of Latvia
Keynote speaker: Robert Spano
Judge, Section President, European Court of Human Rights
‘The Future of the European Court of Human Rights – Subsidiarity, Process-Based
Review and the Rule of Law’
10:00-10:45 Breakout Discussions
 Codifying subsidiarity in the light of recent case law
 Judicial dialogue post Protocol 16
 Subsidiarity – parliaments as key interlocutors
10:45-11:15 Feedback from Breakout Discussions
11:15-11:20 Closing of Conference
11:30-12:00 Participants departure


Conference report
High-Level Expert Conference
2019 and Beyond:
Taking Stock and Moving Forward from
the Interlaken Process
Wednesday 22 to Friday 24 November 2017
Kokkedal Castle, Denmark
Europarådet 2017-18
ERD Alm.del Bilag 4
Offentligt
Page 2 of 21
Conference report
2019 and Beyond: Taking Stock and Moving Forward from
the Interlaken Process
Wednesday 22 to Friday 24 November 2017, Kokkedal Castle, Denmark
Introduction
The aim of the Expert Conference was to explore how the promotion and protection
of human rights under the Convention system can be developed and improved in both
the short-term and long-term. Following the main tracks laid out in the Interlaken
Process, the Conference addressed both the question of how to ensure a more
sustainable functioning of the Convention system and ways of strengthening the
authority of the system.
At the Conference, representatives of Council of Europe Member States met with
representatives of the European Court of Human Rights (the Court), including the
President and the Registrar, officials of the Council of Europe, national
parliamentarians and judges, as well as leading legal experts from academia and civil
society, to address both the immediate problems facing the Convention system and
develop ideas for the long-term future.
Main issues discussed at the Conference include:
 To what extent have the objectives set forth in the Interlaken Process been
accomplished?
 What measures are needed in order to reach our common vision of a Court
that can focus its efforts on serious or widespread violations, systemic and
structural problems, and important questions of interpretation and application
of the Convention?
 How can we work to ensure strong and long-term support and ownership of
the Convention system at a time when populations and decision-makers in a
number of countries are increasingly questioning the authority of the
Convention system?
 Should new avenues be explored in order to meet the challenges that the
Convention system is likely to face in the future?
Context
The current Interlaken reform process, including the results of the High Level
Conferences in Interlaken (2010), Izmir (2011), Brighton (2012) and Brussels (2015),
has brought notable progress, inter alia through strengthening subsidiarity, improving
the efficiency of the Court and addressing the need for more effective implementation.
The Convention system, however, continues to face considerable challenges. The
caseload remains a serious problem. The same applies to the failure to implement
judgments, many of which deal with systemic and structural problems in the Member
States. At the same time, the authority of the Court is being challenged from different
perspectives.
Page 3 of 21
The member states have agreed that by the end of 2019, the Committee of Ministers
should decide on whether the measures already adopted within the existing reform
agenda have proven to be sufficient to assure sustainable functioning of the control
mechanism of the Convention or whether more profound changes are necessary.
Approaching this deadline, the Danish Chairmanship wishes to ensure that the
measures already adopted are effectively implemented, including through the
entering into force of Protocol 15, and initiate a renewed discussion on the future of
the Convention system looking beyond the 2019 deadline.
A specific priority for the Danish Chairmanship is to discuss the need for an enhanced
dialogue between the member states and the Court on their respective roles and on
the development of the Convention system. National Human Rights Institutions and
civil society should also be included in this dialogue.
Based on the Expert Conference, and subsequent dialogue with stakeholders, the
Danish Chairmanship will hold a meeting of ministers in Denmark in April 2018 hosted
by the Danish Minister of Justice. The purpose will be to adopt a political declaration
that takes stock of the current reform process, proposes new measures to strengthen
the Convention system, and provides guidance for further reform work.
The Conference Report
This report provides summaries of the speeches and discussions at the Kokkedal
Conference. It has been elaborated by the organisers in consultation with the
speakers. The report reflects the organisers understanding of the views expressed
during discussions, which took place under the Chatham House Rules. Any mistakes,
remain the responsibility of the authors.
Keynote speeches
 Opening speech by Søren Pape Poulsen, the Danish Minister of Justice
(abstract):
Denmark is a strong supporter of the European Human Rights System and we have
placed continued reform of the Convention system at the center of our Chairmanship
to ensure that the Convention system remains relevant and effective in the future.
Although the Interlaken Process has brought real progress the Convention system
continues to face considerable challenges in regard to the caseload, the failure to
implement judgments, many of which deal with serious systemic and structural
problems, and to the authority of the Court – even in countries with strong support for
human rights.
During the Interlaken Process, great emphasis has been put on the principle of
subsidiarity. And for good reason. The shared responsibility between member states
and the Court is vital if we are to future-proof the Convention system. It is key to fulfil
the common vision of a more focused, effective and balanced system. It would be
practically impossible for 47 judges to handle appeals from more than 800 million
people and more importantly, this is not the idea of the Convention system. Member
states are the primary providers and guarantors of the Convention rights and in doing
so they enjoy a margin of appreciation. Subject, of course, to the supervision of the
Strasbourg system.
There are two sides of the coin of subsidiarity. Subsidiarity affects not only the way in
which the Court should conduct its review, leaving more room to national courts and
parliaments. It also affects the way in which states are expected to honour their
obligations. Only states who take human rights seriously can expect deference. The
two sides of subsidiarity has been a recurring theme throughout the Interlaken
Page 4 of 21
Process. It should also be so during the Kokkedal Conference. There is a need to
discuss both the responsibility of member states and the role of the Court.
There is a third element too, which we maybe sometimes overlook. A system of
shared responsibility can only work if there is an ongoing effective dialogue between
the Court and the member states on their respective roles and on the development of
the Convention. Criticism of the Convention system in countries like Denmark to a
large degree stem from feelings of detachment from the Convention system:
Populations and decision-makers feel they are not being involved and listened to.
National politicians sometimes feel like bystanders to a system that was created by
member states. Some of this criticism may be unfair but there is a point too. Through
its judgments, the Court today has influence on policy areas of great importance to
member states and to our populations. It has impact on our legal systems, on our
societies, and on our lives. The Court generally does a good job. Yet, one cannot
ignore the fact that sometimes when applying or interpreting the Convention, the Court
may get it wrong. The Court is not a perfect, flawless institution and it would be
unrealistic to expect that. It may fail to understand the full consequences of its
decisions and it may miss important and valid arguments. This should not come as a
surprise, nor be controversial, because the Court is dealing with hard cases, involving
difficult dilemmas and a delicate balancing of rights and interests.
There is a fundamental need for an ongoing constructive dialogue between the Court
and member states, including civil society, on how the Convention should be
developed. No one has an interest in a Convention system that is perceived as ‘out
of sync’ by member states and the broad public. Least of all the Court itself. Ensuring
such dialogue is a shared responsibility too. We as member states must also look
inwards. If we want the Court to listen more to us, we must also communicate more
clearly with the Court and not just voice our concerns in local parliaments and the
press. Enhanced dialogue must respect the Court’s role and independence and take
place through appropriate and well-functioning channels. The key value of the
Strasbourg system lies in having an independent Court, whose authority is
uncompromised, and whose decisions we accept as legally binding. Changing this is
not up for discussion. We need to find ways to communicate better within the current
framework.
The question is how to do this in the best possible way? This is something that has
been discussed for some time in Denmark, in a debate involving both politicians,
judges and experts, such as the Danish Institute of Human Rights and iCourts of the
University of Copenhagen who both take part in the Conference. We hope the
discussions here in Kokkedal will take us further on this important issue.
Our ambition is to adopt a political declaration that takes stock of the current reform
process, proposes new measures to strengthen the Convention system and provides
guidance for further reform work. The goal is to ensure a strong and effective
European human rights system for future generations. With broad support and
ownership. Europe deserves and needs that.
 Keynote speech by Guido Raimondi, President of The European Court of
Human Rights (abstract):
The Interlaken process has fundamentally been constructive. Opening up a wide-
ranging and long-lasting discussion on the protection of human rights carries with it
“a risk of retrenchment”. The process did not go that way. Instead, it was characterised
by the express commitment of States to work towards a system that is stronger
overall, which the speech of the Danish Minister of Justice confirmed.
Constructive does not mean “uncritical”. On the contrary, all stakeholders have to
direct their critical faculties to the Convention system, to its international components,
and to the whole national dimension as well. The engagement needs to be a critical
Page 5 of 21
one, the analysis thorough and rigorous, and the discussion a frank one. That is how
progress is made.
The Interlaken process has been characterised by a spirit of inventiveness. The
process of reform must have a practical, problem-solving side that needs to go hand
in hand with more conceptual discussions of legal principles and the reckoning with
political realities. We need to be problem-solvers too, making good use of the tools
available and crafting new ones too.
The full effects of the reform outcomes of the Interlaken process, e.g. Protocols No.
15 and 16 will only be seen and felt in the longer-term, at some point beyond 2020.
There have been other tangible and inventive outcomes as well. The Advisory Panel
of Experts on Candidates for Election as Judge to the Court (the Panel) is an example.
The Panel has been at work since 2011, and has been of great value in relation to the
quality of judges. Enhancing the role and the positive influence of the Panel is an idea
that finds much support among States. The role of the Panel in the institutional
landscape of the Convention should be consolidated. There is also reason to praise
the remarkable success of the single judge formation, which has proved to be a sort
of rescue from a caseload that had reached dire proportions. The Superior Courts
Network is another result. And it goes in the same direction as the guiding spirit of the
Interlaken process towards increased subsidiarity.
Subsidiarity is the quintessence of the Interlaken process. Its essential meaning is
given at the outset of the Interlaken Declaration: A shared responsibility between the
States Parties and the Court to fully secure Convention rights and freedoms. As the
Danish Minister said, subsidiarity is a two-sided coin. One side for the national level,
and one for the international level.
Subsidiarity has been increasingly influential in the Convention case-law in recent
years. A widely-read article of Judge Spano has described this as an “Age of
subsidiarity”. And indeed, the notion has come to a new prominence in the Court’s
reasoning. At a more general level, what has been seen in recent years is subsidiarity
functioning as an organising principle for the European human rights system.
The reality of the system is that it is made up of States with varying qualities of
domestic safeguards, and varying degrees of compliance with international human
rights law. Subsidiarity is noticed more when the Court responds to States with a high
level of human rights protection. When it is shown that the law-making process in a
country involves due consideration of the impact of new legislation on Convention
rights, as part of the democratic debate in Parliament. And when the domestic courts
decide human rights cases on the basis of the principles and the methods well-
established in the Court’s case-law. That integrating trend is present in many
Convention States. And, thanks to the national dimension of the Interlaken process,
it should continue to develop. That is the other side of the coin.
The reform process has fundamentally been constructive because its key notion,
subsidiarity, denotes a consolidation of human rights, not a concession. It does not
impose deference, but fosters the conditions that reduce the need for corrective action
from the European level.
The Danish Minister’s comment that national politicians can feel relegated to the role
of bystanders in the Convention system is a point one cannot overlook. The
deepening of understanding among all actors of the concept of subsidiarity is the best
answer to that.
One of the most salient features of the Interlaken process has been an intensification
of the dialogue with national courts. In this, the Court has acted according to the letter
and spirit of the Brussels Declaration, and this degree of engagement will be
maintained.
Page 6 of 21
There is indeed a case for more, and more effective, dialogue being at the same time
mindful that such interaction has to take place within certain limits. Such concerns
need not arise regarding the possible development of third party intervention, a
familiar feature of proceedings in our Court. A broader legal debate should, in
principle, be a better legal debate, which is desirable.
The development in the caseload of the Court has recently been out of the ordinary.
From 80,000 cases in January, to 93,000 cases in June, to 84,000 cases in
September, and dropping by another 20,000 cases since then. These unusual
fluctuations are due to developments regarding Turkey and Ukraine, and again they
reflect the Court’s understanding that widespread and structural situations have to be
resolved at the national level. In a word, this is subsidiarity in operation.
From Turkey, the Court received 32,000 applications deriving from the measures
taken after the attempted coup last year. Most of these were declared inadmissible
for non-exhaustion of the relevant domestic remedies, the key component of
subsidiarity. However, the potential for a massive influx of cases later on is there. As
for Ukraine, the Burmych case struck out more than 12,000 applications, the Court
deciding that these are to be dealt with in the framework of the general measures of
execution of the Ivanov pilot judgment.
The recent monthly figures showed a total of 64,000 applications pending which is the
lowest number in 10 years. There are about 5.500 cases before a single judge. They
will be decided within a short timeframe. The next group is 15,000 simple repetitive
cases, for which the Court now has efficient working methods in place. Next come the
high priority cases, currently numbering 24,000. Of these, there are some 17,000
cases about prison conditions, largely concerning Hungary and Romania. For both
these countries, the pilot judgment procedure is currently operating, and remedial
measures are in hand at the domestic level. The aim, of course, is to reach a situation
permitting the repatriation of most of these applications. This means that the core
challenge of the Court’s backlog lies in the seven or eight thousand priority cases that
are not due to systemic or structural problems, and the approximately 20,000 standard
cases now pending at Chamber level.
The objective is to press ahead towards a situation in which the Court can devote
sufficient time and resources to the most important cases, and to deliver those
judgments that will have the most far-reaching impact. At the same time, the backlog
needs to be treated. The Court’s intention is to maximise exploitation of the procedural
tools that Protocol No. 14 provided.
 Speech by Frank Schürmann, Swiss Government Agent (summary):
In his speech, Frank Schürmann looked back to the year 2009, when the idea of a
High Level Conference in Switzerland took concrete shape. Originally, the idea had
been to hold a colloquium bringing together the key players of the Convention system,
but then President Costa made a strong plea to the Swiss Government for a ‘Grande
Conférence politique’. This was at a time when 120.000 applications were pending
and 10 years after the Rome Conference. There was a strong feeling that “something
has to be done”, and that “it is now or never”.
Reflecting on the Interlaken Process Schürmann noted that of the three key players
involved in the reform process (Member States, the Court and the Committee of
Ministers), it may be argued that the Court has made the most significant efforts.
Unfortunately, at the level of the Member States, subsidiarity does not always work,
as it should. In the Interlaken Declaration, already, focus had been on national
implementation and ensuring the effective execution of judgments. The overall result
after 7 years was quite sobering, which shows the limits of what the Committee of
Ministers can do today, if a Member State does not abide by its commitments. When
discussing “more profound changes” maybe focus should be on this point, although
inherently difficult.
Page 7 of 21
Schürmann noted that the Court still has to deal with too many cases. This was in
spite of Protocol No. 14 and the impressing output of the single judge formation. There
is also a challenge in assuring the coherence of the case law, especially when it
comes to the application of open concepts, laid down in the Convention itself such as
“necessary in a democratic society”, or concepts developed in the case law, such as
positive obligations.
Criticism directed at the Court is according to Schürmann still a reality and it does not
only come from politicians who do not like foreign judges. We need to take that
seriously. In 2014, the Swiss Government had presented a stock taking report to
Parliament, 40 years after ratification of the Convention. The report was a clear
commitment to the Convention, but also highlighted challenges. Two aspects were
highlighted: The ‘fourth instance’/subsidiarity and dynamic interpretation. These
aspects also formed an important part of the Interlaken and subsequent Declarations,
especially the Brighton Declaration. In regard to subsidiarity and fourth instance the
discussions since Interlaken have left traces in the case law, e.g. in S.A.S v. France,
Lautsi v. Italy and Ndidi v. the United Kingdom. The question is what exact criteria
must be met on the domestic level for this approach to be applied, and how to assure
its coherent application.
Regarding dynamic interpretation, Schürmann pointed out that two understandings of
the concept needed to be distinguished from each other. In the first, the Court, when
interpreting the Convention as a living instrument, has to find answers to new
challenges – e.g. in the field of bioethics or IT. The second concerned ordinary
litigation of civil, criminal or administrative nature, not containing new challenges, as
such, but being examined by the Court in the light of human rights standards. It is this
second kind of dynamic interpretation that most often received criticism. An example
are social rights. The positive obligations deduced from Article 8, could potentially
lead to a little “Social Charter”. In light of the very high number of cases still coming
to the Court, many of them raising serious human rights issues, it would, according to
Schürmann, be wiser to consolidate the case law rather than to develop it further.
Schürmann finally noted that the Court already has done a lot in order to improve the
management of cases. The potential for further optimisation, although the Court has
proven to be quite inventive, would sooner or later be exhausted. Many of the
improvements within the Court have gone hand in hand with a de facto weakening of
the right of individual application. This right to individual complaint is considered to be
the cornerstone of the system. In reality, the cornerstone is already perforated today.
Some even speak of a fiction. Accepting this reality is the prerequisite for truly
“thinking out of the box”.
 Keynote speech by Başak Çalı, Professor of International Law, Hertie
School of Governance (summary):
The focus of Başak Çalı was on four important themes in the Interlaken process. Two
of these were ongoing concerns, which still needed continued attention, and the other
two were new concerns.
The first theme was the non-implementation of judgments, which was a long-standing
and ongoing concern within the Convention system and is intrinsically linked to the
Court’s rising case law of repetitive cases. A specific point of concern related to the
“implementation crisis” is the fact that the number of states who are outright ignoring
or arguing that they do not need to comply with all judgments of the Court, have
considerably increased over the years.
A second theme is the need for collective and strong signals in support of the
European human rights system and the authority of the Court. This was needed in
2010, and it is still needed today for the system to work for everyone. It is necessary
Page 8 of 21
to explicitly promote the message that the system is for everyone, because this is
fundamentally what has made the Convention system a success for so long.
The third theme was to develop a better understanding of the subsidiarity principle.
The Court has responded to attitudinal changes towards the Convention system both
through formal channels of communication with its political masters, as well as in
writing and speeches by its individual judges. It has, however, also gone beyond these
communicative gestures and shown increased willingness to respond to the attitudinal
shifts in its national audience through its substantive case law, departing from what
may be termed as its “standard jurisprudence”. As Professor Mikael Rask Madsen’s
research has shown, the principle of subsidiarity is widely incorporated into the Court’s
case law. New procedural review standards have been developed that allow the Court
to defer to national authorities due to the quality of decision-making at the national
level. However, there is still a lack of a full and thorough understanding of whether the
application of the principle is being done adequately. There is a need to move away
from supporting subsidiarity as beneficial in and of itself, and rather to begin to
consider when it is adequate and when it is not, and furthermore how the Court can
apply the principle in a coherent way with the rest of the Convention principles.
The fourth and last focus theme related to bad faith attitudes towards the Convention,
which was something quite new. There was a need to pay systematic and close
attention to those countries who seek to undermine the Convention system or restrict
rights for ulterior motives. In this context, it has been interesting to see the emerging
novel bad faith jurisprudence under Article 18 of the Convention through which the
Court is able to identify not only that a Convention right was violated, but also that it
was violated in bad faith.
 Keynote speech by Mikael Rask Madsen, Director of iCourts, University
of Copenhagen (abstract):
The 2012 Brighton Declaration sets out a series of objectives with regard to
rebalancing European human rights. Most notably it increases subsidiarity in the
system, as well as it advises that the court should be more focused and centre its
activities on the most serious cases and thereby delivering fewer judgments.
Has the Court become more focused in terms of having reduced the backlog of
pending cases following Brighton? Immediately following Brighton yes, but by 2016
the number of cases reached 80.000 and went above 93.000 in June 2017. The recent
Burmych case helped reduce the number of pending cases below 60.000 cases.
Furthermore, the return of a significant number of Turkish cases, arising from the
failed July Coup, to exhaust local remedies also reduced the number of pending
cases. What is more, both of these recent developments reflect new approaches to
subsidiarity.
Using a “throughput” indicator (defined as the number of applications judged +
dismissed cases + cases struck off the list divided with the input, defined as the
number of new cases allocated to a judicial formation), simple mathematics suggests
that the throughput should be higher than 100 pct. if the case backlog is to be reduced,
meanwhile the system is taking care of new cases. That has only occurred in recent
times – in the aftermath of the Brighton Declaration, yet the rate then dropped to 72
pct. In 2016, the court once again was accumulating a backlog of cases. Until the
Burmych case and the return of the Turkish cases, the number of backlog cases were
worrying. Prospectively, if the current backlog is some 65.000 cases and these should
be reduced within a reasonable period, e.g. 3 years, the throughput should be roughly
130 pct.
The difficulty predicting the development of pending cases pertains to striking
fluctuations in the number of pending cases following instability in a number of
member states. Currently cases are particularly emanating primarily from the conflicts
Page 9 of 21
in Eastern Ukraine, Ossetia, Karabakh, and Turkey resulting in both sudden peaks in
the pending cases – and eventually backlog as it can take a long time to finalize those
cases. The fact that the Court’s main access point is individual complaints makes it in
practice very difficult to create broader solutions in these regards. It is, therefore,
relevant to consider other ways of dealing with conflict cases than what is currently
the appraoch.
A way of measuring the Court’s capacity – its ’horsepower’ – is by assessing its
average output over time in terms of the number of applications judged + dismissed
cases + cases struck off the list. Using this measure, the average capacity before
Brighton was 28.746 applications; the average capacity after Brighton was 70.645
applications. The court has in other words increased its capacity dramatically since
Brighton primarily through the following actions: The dismissal of a significant number
of cases in the immediate period following Brighton, the Burmych approach, and
stricter admissibility criteria. Yet, in the years when those approaches were not used,
the capacity was lower (2015-16). One should keep in mind that the option of striking
off the list a massive number of cases à la Burmych might have been used up, leaving
the court with a significant amount of cases in the lower priority categories, notably
Cat. IV cases. Creating new capacity in those regards requires coming up with new
ways of establishing for instance “leading cases”. Or, alternatively, focusing on
settling cases with member states.
How long do applications have to wait for being solved? There are currently many
backlog cases dating back quite some years. A few countries stand out, having an
average age of cases of more than 4 years. Other cases, many from the conflict over
Ossetia, go back 8 years. Only few countries have many old cases, and the bulk of
all old cases derive from those countries. If the Court is to reduce this backlog of
seriously old cases, meanwhile performing its job with regard to new cases, it needs
significant capacity. Of the total of cases older than 3 years, that is a total of some
11.165 cases, 8.624 are category IV cases – that is 77 pct. And 1.844 cases are Cat
III - 16.5 pct. How can this backlog be cleared? The clear starting point is that
Category IV cases have to be dealt with individually, unless they are re-classified as
priority V, following a new leading judgment or pilot judgment. Or a negotiated solution
can be found and they will be struck off the list.
Another way the case-situation has changed in recent years is by the development of
a new subsidiarity doctrine. According to statistics, the use of margin of appreciation
remains roughly the same in absolute numbers. Yet in relative terms, it is steadily
increasing, particularly in two areas of law. First with regard to Art. 8 there is a
significant increase in the evocation of margin of appreciation. Second, the
development is linked to the emergence of a new standard for the exhaustion of
domestic remedies. We are starting to see a new more stringent standard that
emphasises the responsibility of the claimant to argue the case in such terms that the
domestic judge has had a real chance to consider the Convention issues arising from
it. To exhaust domestic remedies in the new landscape of subsidiarity, the claimant
and the judge need to conduct a more thorough examination of the relevant
Convention case law.
 Keynote speech by Jonas Christoffersen, Director of the Danish Institute
of Human Rights (abstract):
Democratic debate on human rights is necessary. The domestic debate varies
significantly from country to country, and from time to time. The Brighton Declaration
welcomed and encouraged open dialogues, and the key question is how to improve
the dialogue.
A European dialogue on human rights makes sense only if the European Court of
Human Rights is willing and able to engage. The Court has always engaged in
dialogue as reflected in the doctrine of direct (Wemhoff) and subsidiary review
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(Belgian Linguistic case). The Court refined its subsidiary review around 2003 and
today the most important question revolves around the complex interaction between
normative standard, domestic procedures and democratic legitimation.
Integrated review of procedure and substance revolves around the two limbs of
subsidiarity: it encourages states to implement the Convention just as it encourages
the Court to exercise a measure of restraint. The integrated review of procedure and
substance can be seen in many areas of case-law. The development is reflected in
the Court’s view, that if domestic courts exercised a careful balancing act, then strong,
serious reasons are required to depart (von Hannover/Ndidi). The role of the domestic
policy-maker should be given special weight in matters of general policy
(Hatton/Maurice/Draon/Animal Defenders/SAS). The Court has attached special
weight to the absence of a good judicial and/or political process (Hirst). The Court’s
review is not purely procedural, and the Court has been consistent in upholding a
substantive caveat (e.g. Bosphorus).
The Court is still required to develop and refine international standards, but new ways
should be found by the Court to be more tactical and diplomatic, since the Court’s
authority is being challenged when it changes and develops case-law. If new
standards are developed by a chamber, it allows for a measure of debate before the
development is accepted or rejected by a Grand Chamber (Hatton/Lautsi/Al-
Khawaja). If this is not possible, other tools should be explored to ensure sufficient
involvement and democratic debate. Otherwise, the risk of losing democratic support
may be too high. New standards could also be developed incrementally e.g. by
adopting a general interpretation and indicate to the responding state that the area
should be kept under review (Zdanoka).
 Keynote speech by Ingo Venzke, Director, Amsterdam Center for
International Law, University of Amsterdam (abstract):
The public authority of international courts such as the European Court of Human
Rights requires democratic justification, which in turn draws attention to modes of
participation in the Court’s practice. Just like the Convention is a dynamic, living
instrument, the Court’s democratic justification must likewise be dynamic and cannot
be confined to a few points in time.
Democratic constitutional states remain the primary locus for democratic decision-
making and for the justification of international public authority, such as that exercised
by the Court. With regard to the Court, strands of democratic legitimacy that connect
to member states run via (1) the fact that states ratified the Convention and
subsequent Protocols; (2) their consent to the jurisdiction of the Court and its
procedure; (3) the role they play in the nomination and election of judges. Convention
states thus contribute to justifying the Court (ad 3) personally, (ad 2) institutionally and
(ad 1) substantively.
But these strands of democratic legitimacy do not settle questions about the
democratic justification of the Court’s public authority. The justification that flows from
states’ acts of ratification is curtailed by the fact that the Convention evolves in the
practice of the Court. Large parts of the debates about the Court’s legitimacy at
present are precisely about the supposed gap between states’ one-time ratification
and later developments in the law that seem to be largely withdrawn from their reach.
Increased possibilities of participation and politicisation are therefore needed to
complement the judicial development of the Convention.
A procedural approach to the margin of appreciation would essentially probe the
democratic quality of domestic decision-making and adjust the margin of appreciation
accordingly. Plus, the stronger the European consensus on a certain issue, the
stronger would be the burden on domestic democratic processes to possibly stem
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themselves against that consensus. These are ways of strengthening the Court’s
interaction with domestic political processes.
Neither other member states nor a general public are however part of that interaction.
As a ‘constitutional instrument of European public order’, the Convention belongs to
a broader community of which the Court is the judicial organ. In addition to domestic
political processes in any single member state, the Convention’s interpretation and
application therefore needs to be embedded within international, European political
processes.
Publicness and transparency are the primary conditions for any strategy of increased
participation or politicisation. The Court’s procedure and practice already cater to such
demands. But the additional potential may be considered of presenting draft judicial
decisions for comments in order to counter surprise and to point to consequences that
judges would not otherwise have anticipated.
Through third party interventions and amicus curiae, the Court’s statute permits ‘every
person concerned’ not only to participate in oral hearings, but – with the President’s
permission – also to submit written comments. In comparison with other international
courts, the Court does exceptionally well in summarising those comments and in
engaging with them in its decisions. It is noteworthy, however, that states rarely
intervene in proceedings. This reluctance also contrasts with the practice in other fora,
such as the World Trade Organization (WTO) where the EU and the US intervene in
almost every single case in full recognition of the law-making dimension of
international adjudication. NGOs intervene more often before the Court; and they also
have the potential to introduce the voice of the general public. That could also be the
role of the Commissioner for Human Rights. The long-standing proposal of
introducing a General Advocate could be reassessed in this context.
Several dimensions of a judicial remedy contribute to the democratic justification of a
court’s public authority: It ties judges closer to the law that they are bound to apply; it
corrects wrong decisions; and it can promote the consistency of adjudication, which
in turn severs the goal of equality. With a view to increased participation and
politicisation, the existence of a legal remedy allows for responsiveness, and it
provides a focal point for third states and for a critical public.
In relation to the political embedding of judicial practice, it is noteworthy that neither
the Committee of Ministers, nor the Parliamentary Assembly, nor any other body,
provides a forum for the discussion of developments in the Court’s jurisprudence. It is
clear that the Committee’s task of supervising the execution of the Court’s final
judgment is precisely a matter of implementation and not of discussing the judgments
as such. By comparison, the WTO Dispute Settlement Body (DSB) regularly
discusses the reports of the panel and Appellate Body. Adjudicators in the WTO then
can (and do) react to those discussions. If there were a European forum for the
discussion of the Court’s case law – for discussing how the norms of the Convention
should be interpreted – it would provide a repository of reasons on which judges would
be free to draw, without putting into doubt judges’ independence or their monopoly
over the final decision. Such a forum would also provide the possibility of norm-
contestation that could work against the contestation of the Convention, the Court, or
the System per se.
A dynamic, living Convention at the heart of the Court’s practice requires a dynamic,
democratic justification of the Court’s authority. Emphasis should thus be placed on
the interaction between the Court and political processes at the domestic level and –
even more so – at the European level. The Court’s judicial practice should be
embedded within political processes.
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 Keynote speech by Robert Spano, Judge and President of Section,
European Court of Human Rights (abstract):
The intervention was based on two inter-related claims. Firstly, that the Court for the
better part of its history to date has been engaged in ‘embedding’ Convention
principles into national systems. Secondly, that this ’embedding phase’ has now, in
general, shifted towards a new historical phase in which the Court has begun to
realign its project away from its decades-long embedding work towards the domestic
enforcement of already settled principles and the domestic empowerment of
Convention stakeholders at national level, the ‘procedural enforcement phase’.
This two-dimensional historical trajectory is both descriptively correct and normatively
justified; first, as a matter of empirical fact, the rendition of Convention history did in
fact take place, and, secondly, and more importantly, this trajectory is to be lauded
from a normative point of principle for the future of the Convention system, its
sustained legitimacy and continued effectiveness.
The embedding of Convention principles by the Court has been a functional process
aimed at progressively creating the necessary foundations for the realisation of the
Convention´s overarching institutional structure manifested in the principle of
subsidiarity, so as to trigger the full engagement of the member states with their
obligations under Article 1 of the Convention as the primary guarantors of human
rights and freedoms. The concept of ´embeddedness´ used here is therefore not a
description of the end result of this process, i.e. the actual and full domestication of
Convention principles, but rather a term used to describe the function or purpose of
the process itself as it has developed historically in the last forty years or so.
The perceived legitimacy problem of the Convention system comprises two
components.
The first component postulates that the embedding phase, although necessary for the
creation of the edifice of human rights forming the basis of the Convention system,
has been, as some have argued, an inherently top-down, juridical project. The
argument suggests that placing an international court at the vanguard of formulating
and giving life to legal norms impacting the day to day life of democratic societies
across Europe may have given rise to a ‘crisis of legalism’. Convention rights have
thus, as the argument proceeds, been developed through language formulated by
international jurists and judges and above national democratic political life as
constituting pre-political or supra-political legal norms in the sense of being created in
isolation from the political community to which they belong.
The second component is grounded in the doctrine of original expectations of the
member states. The argument goes that the Court’s interpretations have lost their
rational connection to the expected original meaning held by the ratifying States,
perceived as a sovereignty or a separation of powers problem. This component also
manifests itself in the rejection of the idea that whilst it is accepted that the Court has
an important role in giving life to the rights protected by the Convention, it is not its
role to apply strict scrutiny to the domestic assessment of the necessity of their
restriction. In other words, it is claimed that at the stage of balancing individual rights
and the public interest and employing the principle of proportionality, the legal aspect
of the assessment has in the strict sense ceased, and solely political and policy factors
come into play, in the adjudication of which the Court is not in a more knowledgeable
position than the domestic decision-maker.
There is a need for some conceptual clarifications when accounting for the procedural
enforcement phase. In contrast to the Court engaging in strategically attempting to
embed Convention principles domestically, and thus invariably having to strictly
review domestic decision-making and to substitute its judgment for the national
authorities, the current era, the procedural enforcement phase, manifests itself in the
Page 13 of 21
Court taking a more framework oriented or abstract role when reviewing domestic
decision-making. This may be termed process-based review.
There seems to be empirical grounding for the conclusion that such development has
in fact taken place, although the complex case-law of an international court like the
Court can never maintain a fully linear trajectory. More importantly the development
may also seem as normatively justified on both institutional and substantive grounds.
Regarding the latter claim, one can take the view that criticism of the Convention
system is a natural consequence of an international system for the collective
enforcement of human rights, and that the Court and the Convention system should
not be concerned by, nor react to, such criticism. That is not the right approach to
take. Every international system of law, as a system that by definition is not embedded
politically and historically in a national constitutional framework, is from time to time
confronted with the threat of losing its effectiveness at national level if a critical mass
of distrust and a perceived lack of legitimacy pervades its work. The historical
trajectory of the Convention system has, by its very nature and current status, thus
called for a shift of focus to secure the increased effectiveness of human rights
protections at national level, by moving from the embedding of Convention principles
towards a bottom-up strategy empowering national rights-holders and decision-
makers to take the lead in enforcing and guaranteeing human rights.
There are three main elements of process-based review within the procedural
enforcement, one might argue, that the Court is currently deploying to effectuate an
approach allowing for increased domestic empowerment of Convention rights:
Exhaustion of domestic remedies: Firstly, at the technical level, the Court has in recent
years developed its exhaustion of domestic remedies jurisprudence under Article 35
of the Convention, in particular with its Grand Chamber judgment in Vučković and
Others v. Serbia which, while confirming already settled principles, may be interpreted
as requiring applicants to be more diligent in raising their Convention complaints for
domestic remedies to be properly exhausted than transpired from previous case-law.
Criteria-based Guidance for Convention Based Assessment at Domestic Level: The
second element of the procedural enforcement phase manifests itself in important
case-law, in particular Grand Chamber judgments, increasingly being formulated in
terms of providing, in the general principles part, objective interpretational criteria that
can guide national decision-makers in their application of the Convention at ground
level.
Qualitative Democracy-Enhancing Approach to Legislative Deference: The third
element of the Court’s procedural enforcement phase is its refusal to draw any
distinction of principle between the subsidiarity-based deference that may be afforded
to national authorities of a judicial or executive nature on the one hand, or, on the
other, domestic parliaments producing legislative norms that are facially challenged
before the Court.
Under process-based review, the Court may grant deference if national decision-
makers apply the general principles, are structurally capable of fulfilling that task and
respect the rule of law. Will the future of process-based review in Strasbourg inevitably
lead to double standards of human rights protections within the Council of Europe?
That of course depends on what is meant by ‘double standards’. The Convention’s
general principles apply equally in all member states and the Court’s process-based
supervision of their domestic enforcement is, at the level of principle, the same for
each State.
In conclusion, there are clear signs that the historical trajectory of the Convention
system, from the embedding phase to the current procedural enforcement phase, is
an empirical reality, but more importantly a development that is normatively justified
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on both institutional and substantive grounds. It will sustain and support in the long
run the system’s overall legitimacy for the peoples of Europe and, hopefully, at the
same time result in the progressive decrease in the number of applications to the
Court. This should lead to a commensurate enhancement of Convention protections
at national level, at least in those member states that take their obligations seriously
and apply the general principles set out by the Court in good faith.
Breakout Sessions
 Dealing with systemic and structural problems – the case of prison
conditions
The breakout session discussed the question of how the Convention system can
become more effective in dealing with systemic and structural human rights problems
in member states. The need to ensure implementation of general measures that solve
structural problems has been a key issue throughout the Interlaken Process. In the
Brighton Declaration the member states agreed that future reforms must enhance the
ability of the Convention system to address serious violations promptly and effectively,
focusing efforts on serious or widespread violations, and systemic and structural
problems. Using the case of prisons conditions, it was discussed how we more
effectively may solve structural and systemic problems identified by the Court e.g.
through pilot judgements. A number of questions were raised in the session including
whether there is a need to increase the Council of Europe’s capacity in the field of co-
operation and assistance to member states? And/or whether we need to take a stricter
approach to member states that fail to implement judgments that have identified
systemic and structural problems? Different national approaches and practices were
discussed. It was then discussed how dialogue and co-operation programmes
between Governments and the Council of Europe institutions could help design the
right process. Some participants shared member state experiences of good
cooperation and dialogue with the Committee of Ministers and the execution
department. It was the overall understanding among the participants that the pilot
judgment procedure generally works well and that deadlines in the process help
motivating the national authorities to execute the judgments speedily. It was pointed
out by some participants that when judgments are not executed at the national level
this is only rarely because of a lack of political will but rather a question of prioritisation.
The problem is quite often the incapacity to put in motion a domestic political process
which would secure participation of all national actors with a view to resolving a
structural deficiency. Yet another judgment or interim resolution is not enough to
achieve this goal. The general view was that there was no need for a new special
track within the Court for cases concerning systemic and structural problems.
However, it could be necessary for all involved actors, including the Court, to be
inventive in order to induce domestic decision-makers to pursue appropriate policies.
The Council of Europe cooperation projects aiming at a permanent dialogue with the
national authorities concerned need to be further exploited to that effect. This was
raised to point to the fact that lack of knowledge of the Convention system, at the
national level, remains a real problem in many countries, in particular among domestic
judges. National Parliaments may also not be aware of which measures are the
appropriate ones for solving systemic and structural problems. Better training and
translation of judgments could therefore beneficially be prioritised.
 Pilot judgments and the Burmych case – a new institutional balance?
The breakout session dealt with the recent case of Burmych and Others v. Ukraine
where the Court referred specifically to the Interlaken, Izmir, Brighton and Brussels
Conferences. With the judgment the Court has devised a new approach, in line with
the principle of subsidiarity, for dealing with repetitive cases, stemming from non-
execution of a pilot judgment. One of the questions raised was what the potential of
this approach is? Could it be a solution for solving the Court’s backlog? Other
questions concerned the implications of this approach both for the Committee of
Page 15 of 21
Ministers and other stakeholders, notably the applicants? The general view of the
participants was that pilot judgments are a good and necessary tool for the Court and
member states alike. Some participants had, however, been genuinely surprised by
the Court’s new approach in dealing with non-execution of pilot judgments and felt
that it would have been useful with a preceding dialogue between the Court and the
Committee of Ministers. Some expressed concern about the situation of the individual
applicant after Burmych, but there was also a broad acknowledgement of the
challenges faced by the Court when a pilot judgment is not implemented and repetitive
cases keeps pulling heavily on the Court’s resources. There was a clear sense that
the discussions about the implications and handling of the Burmych judgment was
just starting and would continue in the coming period, with many questions remaining
unanswered.
 Admissibility on the road to Protocol 15
The breakout session concentrated on the fact that the Court is, and for a long time
has been, overwhelmed by the ever-increasing amount of applications. In the
Interlaken Process it has continuously been stressed that the Court should apply the
admissibility criteria strictly and consistently in order to ensure balancing of the
number of pending cases with the Court’s actual capacity also in order to maintain
confidence in the rigour of the Convention system. It was discussed whether the Court
is living up to this requirement or if more could and should be done? The implications
of Protocol 15 entering into force was also debated. How is it ensured that the new
and tightened admissibility criteria regarding ‘significant disadvantage’ have the
intended effect? And would new approaches to admissibility be necessary in the
future? Participants noted that one of the aspects the Court had recently started to
focus on was exhaustion of domestic remedies. An example of this was the many
post-coup cases that had been returned to Turkey. Participants also noted that the
Court had begun to apply more strictly the approach that if an applicant had not raised
a certain Convention point during the domestic proceedings, the applicant would be
prevented from doing so in Strasbourg. This too was seen as an important and
necessary development. Another trend detected by participants was that the Court
generally seemed more inclined to reject cases where the applicant has failed to give
sufficient reasons for his complaint. This too was seen as important. Previously, the
Court had generally seemed more willing to interpret a given complaint in a way that
made it fit within the provisions of the Convention. As an interesting example of the
Courts recent application of the “significant disadvantage” criteria the case of Anthony
France and Others v. the United Kingdom was mentioned during the discussions. It
was generally agreed that Protocol No. 15 would be a further and important step in
the direction of reducing the Court’s workload. Hopes for a speedy ratification from
the last few countries were therefore expressed.
 The art of the possible: Setting ambitious, yet realistic goals for the
future
The breakout discussion focused on the actual capacity of the Court. There was a
broad acknowledgement that the new data presented at the Conference was of great
interest. A key question is how many cases a Court with 47 judges can realistically
deal with each year. In relation to this, it was discussed if further optimising and
rationalising is at all possible within the current set-up without jeopardizing the judicial
quality of the Court’s work. A question was posed whether it is for example acceptable
that victims of human rights violations may have to wait 5 or even 10 years for their
case to be decided? And if there is a limit as to how brief the reasoning of judicial
decisions can be in order to be meaningful? The participants found the figures
presented by Professor Mikael Rask Madsen estimating that the Court can deliver
judgments in approximately 2,000 substantive (Chamber and Grand Chamber) cases
each year very interesting. There are fundamentally two ways to bring down the
Court’s workload: either by adjusting the input or the output of cases. It was generally
felt that more focus should be put on the input side of the equation. A number of
Page 16 of 21
different measures were discussed to lower the input/number of incoming cases from
the Court, or to solve them by other means than through judgments, including
mediation at the national level and negotiated solutions with the Court. Regarding the
output, an increased use of technological developments to find patterns and improve
processes was mentioned as potentially worth exploring by some participants. A point
was made that even though 5 or 10 years was objectively a very long time to wait for
a judgment, the value for the applicant of receiving the judgment could be very
important regardless of the time passed. This was just one of the issues that made it
difficult to establish the right indicators for measuring the Courts performance. It was
felt that more work and analysis was needed on this topic.
 Selection and election of judges
The breakout session dealt with the question of selection and election of judges to the
Court. The quality of judges appointed to the Court has been emphasised on many
occasions, including in the Declarations adopted in Interlaken, Izmir, Brighton and
Brussels, as well as in the CDDH follow-up report on the longer-term future of the
Convention system. On the basis of recent discussions on the election and selection
of judges at four meetings in the DH-SYSC-I working group and the decision of the
Parliamentary Assembly to re-examine the Assembly’s rules on election of judges
with a view to re-stating and updating them the breakout discussions focused on how
to further improve the selection and election process. It was pointed out that one of
the fundamental problems underlying all other issues on selection and election is that
member states have not agreed among themselves what kind of qualities they are
looking for in a judge. The participants generally felt that such a clarification was
desirable. In this conjunction the point was raised if the criteria for holding office in
Article 21 of the Convention requiring that judges must possess the qualifications
required for appointment to high judicial office or jurisconsults of recognised
competence should be amended to say “highest” judicial office and that proficiency in
international law should be a Convention requirement. To improve the procedure in
the short term it was generally the view that member states should be more aware of
the criteria used by the Advisory Panel of Experts on Candidates for Election as Judge
to the Court and that Member States should not bypass the Panel when presenting
the list of candidates. Furthermore interaction and cooperation between the Panel and
the Parliamentary Assembly should be strengthened to better ensure the expert input
from the Panel in the political process. This could be done in several ways, including
by participation of representatives from the Panel at the hearing of the candidates in
the Committee on Selection of Judges to the Court and by giving Panel
representatives the possibility to explain the Panel’s views on the candidates to the
Committee.
 The need for a clear and commonly accepted framework – dynamic
interpretation and its limits
The breakout session focused on the Court’s dynamic interpretation and possible
improvements and developments in this regard. The premise for the discussion was
that the Court’s judgments should guarantee effective protection of human rights and
that this may require a certain flexibility such as the “present-day conditions”-
approach when interpreting the Convention. As basis for the discussion, the attention
was directed to the rules of interpretation in Articles 31-33 of the Vienna Convention
on the Law of Treaties that governs the Court’s interpretation of the Convention and
may hold an important potential for legitimation of the Court’s decisions. From a more
general perspective, the suggested basis for the discussion was, that the Court’s
interpretation should not stray away from the general principles of treaty
interpretation, and that, from a more practical perspective, the Court’s dynamic
interpretation should proceed in a careful and balanced manner that ensures the
appropriate and measured development of international human rights standards. A
number of participants highlighted the need for dynamic interpretation, for example
when new technologies emerge and when moral standards change. Other
Page 17 of 21
participants gave examples of situations where the Court had stretched the limits of
interpretation and made remarks on whether social rights and positive obligations
should be interpreted into the Convention or if the extraterritorial application of the
Convention had gone too far. The participants generally asked for a clear reasoning
from the Court when dynamic interpretation is being applied. The participants also
expressed an interest in having the concept of “European consensus” clarified by the
Court, including what it precisely means and how it is applied so as to secure to every
possible extent the acceptance of the judgment at the national level. Participants also
raised as a general point that the Court should find ways to inform member states
before it made changes in interpretation since this could allow member states to
engage in a dialogue with the Court, through third party interventions or by other
means.
 Addressing the element of surprise – keeping member states informed
and involved
The breakout session focused on the benefits of keeping member states informed
and involved in developments at the Court. The premise for the discussion was that
consistency in case law, legal certainty and predictability – as well as transparency –
are key factors with regard to the legitimacy of any legal system. In the Convention
system, notwithstanding the fact that there is no “erga omnes” effect, judicial decisions
may still have an impact on stakeholders beyond the parties of a case, which raises
questions about participation and transparency. Ideas discussed in the session
included whether the Court should give reasons for referral of cases to the Grand
Chamber? And if Grand Chamber hearings could be improved to ensure a more
meaningful debate, including at the stage of oral hearings? It was also discussed
whether a new procedure should be introduced that would allow a larger group of
member states to bring controversial Chamber decisions before the Grand Chamber
(where these states would then appear as third parties before the Grand Chamber)?
Some participants noted that even though legal certainty surely was desired, a certain
element of surprise is inherent in any court system. It was equally clear that adequate
and timely information is a natural prerequisite for participation and generally desired
by all. Participants generally felt that it would be desirable to have the Court send out
notifications to member states about which cases are pending before the Grand
Chamber, including the set deadline for intervention and other relevant information. It
was felt that this would not put too much of a burden on the Court. Some felt that the
establishment of an Advocate General at the Court was an idea worth revisiting. The
Government Agents’ network was highlighted by some participants as another good
supplementary tool to keep the member states informed. Restructuring the Court’s
website to a more user-friendly format and an easier use of modern-day devices were
also mentioned. Some participants found it desirable if the Court could give reasons
as to why a given case is being referred from a Chamber to the Grand Chamber.
While others expressed certain reservations in this regard. Regarding the possibility
for a larger group of states to demand a case tried at the Grand Chamber, this was
an interesting idea. There was a discussion if it would require changes to the
Convention. Some believed that this would be the case. There could, however, be
other ways to achieve the same aim, one being to approach the Court with a grouped
request under the present rules with the expectation that it would be accommodated
by the Court.
 Advocating the Strasbourg system – a shared responsibility
The breakout discussion focused on how to better advocate the Strasbourg system
in light of the common understanding that a lack of clear communication – as well as
unbalanced communication – may play out negatively with regard to national
audiences’ perception and accept of the Convention system. This can, inter alia, lead
to misunderstandings on the scope of judgments and provide a wrong picture of how
the system works, including the importance of reforms already carried out. A number
of factors and dynamics may add to this problem. Questions posed included: Are we
Page 18 of 21
good enough at explaining what goes on in Strasbourg? Could we be better at
explaining the advantages of the Convention system to the broader public? Could
more be done at the Strasbourg level, e.g. by appointing a spokesperson for the Court
or a more active use of social media? Could the communication between the Court
and the Government Agents be improved? How can national decision-makers,
authorities and civil society play a constructive role in this regard? Some participants
expressed the view that the Court should be sensitive to the implications that its
judgments have even though the Court is, naturally, not there to please the member
states. The point was made that member states should engage in the dialogue with
the Court in good faith and never deliberately misinterpret the Convention. It was
highlighted during the discussion that there is a fundamental difference between
advocating the Strasbourg system as such and explaining a single specific judgment.
Single judgments can often be much more controversial and difficult to explain. Many
participants found that member states need to reiterate and emphasise why it is
beneficial for them to be part of the human rights system. In this regard, training and
education were considered to be very important elements. Participants identified
National Human Rights Institutions as important actors in advocating the Strasbourg
system and there were perhaps still untapped resources to be found there. The point
was raised that it is generally important to not only focus on what the Court has said,
but also what the Court has not said in a specific case, so as to avoid
misinterpretations of the Court’s judgments. Regarding the Court’s possible use of
social media, it was raised as a point that it would require considerable resources to
communicate a given judgment on, for example, Twitter as it requires a very thorough
analysis to communicate in such a short format.
 Increasing third party interventions by member states
The breakout discussion focused on how to make it easier for member states to
intervene and participate in important and principled cases before the Court on the
assumption that this may provide important means for strengthening the legitimacy of
the Convention system. It was discussed if the Court could do more to inform member
states or actively invite member states to intervene in cases that raise questions for a
wider number of states? It was also discussed whether it is a problem that the Court
does not provide any reasoning for referrals to the Grand Chamber and what member
states themselves can do to co-ordinate their participation in important cases? The
participants agreed that third party intervention is a useful tool that should be used
more. It allows member states to present their views and concerns directly to the
Court. It is noteworthy that the instrument of third party interventions is not used more
widely by member states. The participants generally felt that the focus of third party
interventions should be at the Grand Chamber level where the real difficult legal
issues are most often being dealt with. Better information about these cases to
member states would be central for an increased use of the instrument. In this regard
participants identified it as a particular challenge when a Chamber relinquishes its
jurisdiction in favour of the Grand Chamber and no information is given as to why this
is the case. It was generally felt that the Court in these instances should inform about
the reasons for relinquishment to allow member states to assess the relevance of a
third party intervention from their side.
 Increasing third party interventions by civil society, NHRIs and IOs
The breakout session focused on interventions by civil society, National Human
Rights Institutions (NHRIs) and International Organisations (IOs) and how these
interventions may enhance the quality of the Court’s argumentation and contribute to
the legitimacy and authority of the Court’s judgments. The workshop debated how to
ensure a further participation by civil society, NHRIs and IOs in important cases before
the Court. It was acknowledged and accepted that the Court has limited resources,
and that such interventions can be a very useful tool for the Court to gain valuable
background information on a particular state policy, practice or situation. Furthermore,
such interventions may provide additional perspectives and contribute to discussions
Page 19 of 21
mobilising the general public. The participants were generally very positive towards
the practice of third party interventions, highlighting that the interveners can endow
legitimacy to a judgment but also act as factfinders in a given case. Some participants
mentioned that it could give cause to a certain frustration among non-governmental
organisations when their submission for third party intervention was rejected and no
reason for this was provided by the Court. The participants generally felt that the 12-
week deadline for intervention was short, especially if one only became aware of the
case at a later stage of the process. Due to this, and because of the desirability to
better be able to assess relevant cases with regard to possible intervention, it was
generally felt that the Court should consider providing more information about pending
cases at an early stage.
 A new role for the Committee of Ministers?
The breakout session considered whether, for example, the Committee of Ministers
should be used to discuss developments in the jurisprudence of the Court. The point
of departure was that international courts do not operate as parts of polities that
include functioning political legislatures (as we know from the national level). Once an
international agreement is in place, it is largely withdrawn from the grasp of its
individual makers. This profoundly changes the relationship between law and politics.
Although it is, in principle, possible for member states to amend the Convention, it is
in practice often a difficult path. The thesis put forward was that the lack of political-
legislative inputs could constitute a challenge to the long-term authority of the
Convention system. Seeking the right institutional balance within the system is a
challenge and various institutional means need to be considered to that effect. One
possible way to address this challenge could be to create new channels for a more
pointed communication between the political and legal levels with regard to the
understanding of the Convention and its evolution. One among more options could
be to use the Committee of Ministers in this regard. It was put forward as a premise
that such debates should never be about specific judgments, but rather concern the
general understanding of the Convention on questions of importance for member
states. The reasoning behind such a proposal being that it, within the existing
institutional framework, could create a more direct dialogue between the Court and
the member states. This would give the Court a clearer picture of consensus among
governments on certain areas of law, and thereby help solving some of the challenges
of applying “treaties over time” and anchor the development of European human rights
in a more democratic structure. The debate among the participants was very lively. It
was clarified during the discussion that what was being proposed and debated was
not a direct dialogue between the Ambassadors of the 47 member states and the 47
judges of the Court physically being in the same room, but rather a less indirect
dialogue than what is currently the case. Many participants, however, still expressed
reservations about using the Committee of Ministers for discussions about the
developments in the jurisprudence of the Court. Some of the points raised were that
the Committee would then be given too many roles, that discussions in the Committee
would most likely evolve around dissatisfaction with single judgments, that such
discussions might infringe upon the independence of the Court and that member
states already have the possibility to express views on topical issues through existing
structures within the Convention system. At the same time, participants generally
declared that they were open to more dialogue about the case-law of the Court, but
maintained that the Committee of Ministers was not the right platform for such
dialogue. Instead, some participants suggested to having such a dialogue in a more
informal setting where civil society could also be included. The conclusion was thus
that the diagnosis was right, but more recipes had to be considered.
 Codifying subsidiarity in the light of recent case law
The breakout session discussed how the Court’s application of the principle of
subsidiarity has undergone significant development since the early days of the Court
as well as more recently following the Brighton Declaration and the adoption of
Page 20 of 21
Protocol No. 15. Important cases include Animal Defenders International v. the United
Kingdom, S.A.S. v. France, and recently, on the question of deportation of foreign
criminals, Ndidi v. the United Kingdom. It follows from this practice that the Court,
premised on actual and good faith domestic engagement with Convention principles,
exercises restraint in light of various factors, including the direct democratic
legitimation of domestic policy-makers, the domestic decision-making process, the
domestic assessment of evidence and facts as well as the various European and
international standards of protection. The session discussed this development and
how to use it with the goal of further refining and codifying the key concept of
subsidiarity. The participants generally did not find that the concept of subsidiarity
should be codified as such, since this may freeze the concept and restrain the Court
in its continued usage of the concept. Some participants also questioned if it would
actually be possible to draft a wording that would accurately capture the concept.
While most participants, thus, did not support codification in a strictly legal sense there
was broad support to the idea that developing a more robust concept of subsidiarity
is important for the further development of the Convention system and that positive
developments in this regard should be supported and acknowledged.
 Judicial dialogue post Protocol 16
The breakout session discussed the optional Protocol No. 16 as a tool for enhancing
judicial dialogue, using requests for advisory opinions, as a new and direct channel
for communication between the highest domestic courts and the Court. The Protocol
introduces an option for the domestic courts to ask the Court for non-binding advisory
opinions on questions of principle relating to the interpretation or application of the
rights and freedoms enshrined in the Convention. The discussion took place in the
context of the expectation of entry into force of the Protocol within the near future in
light of the recent French announcement of its intention to ratify Protocol No. 16. The
participants primarily discussed possible positive and negative aspects regarding the
Protocol. Some of the positive aspects highlighted during the discussion were that the
Protocol could enhance the coherent application of the Convention; could prevent
violations of individual rights from occurring already at the national level; may enrich
the agenda of the Court; could be seen as a feedback mechanism to the Court; could
enhance a better structured judicial process and may enhance the role of third parties
and their interventions, including the Commissioner for Human Rights. Regarding the
workload of the Court, the point was raised that, at the initial stage, the Protocol might
increase the workload, but that the workload might be reduced in the long run because
the national courts are applying the Convention better. Some of the negative aspects
highlighted during the discussion, were the risk of undermining the authority of the
national courts; the uncertainty about whether the Court would in fact provide an
advisory opinion or not; the uncertainty of the consequences if the Court did not issue
an opinion, and that confidential information may be revealed to the applicant and
other parties in connection with the Court’s treatment of a request for an advisory
opinion. There was broad agreement among participants in the session that
uncertainty about how the arrangement will work in practice was a major reason
behind the limited number of ratifications so far. Many had for this reason adopted a
“wait and see” approach. Another uncertainty was the Opinion 2/13 by the EU Court
of Justice on the EU’s accession to the Convention. Participants noted that Protocol
No. 16 is not an easy instrument and that a comprehensive guide from the Court’s
would be welcomed.
 Subsidiarity – parliaments as key interlocutors
The breakout session focused on how, when dealing with policy issues, it is becoming
increasingly recognised in the case law of the Court that effective parliamentary
engagement in the “pre-interference assessment” of human rights, i.e. the
assessment by the legislator of the possible human rights implication of draft
legislation, is fundamental. The role of national parliaments has been addressed in
several prominent cases, such as Animal Defenders International v. the United
Page 21 of 21
Kingdom and S.A.S. v. France. In the latter case, the Court, inter alia, stated that: “In
matters of general policy, on which opinions within a democratic society may
reasonably differ widely, the role of the domestic policy-maker should be given special
weight”. On the basis of the Court's recent case-law, it was discussed how the quality
of the parliamentary process can provide the basis for a more robust concept of
subsidiarity. It must be acknowledged that many contemporary human rights issues
facing European societies today involve questions of public policy that cannot only be
resolved in the legal sphere (neither by national nor international courts). Democratic
engagement with human rights issues is therefore important. There is of course an
important distinction between absolute human rights, e.g. the prohibition of torture,
which the political level may never abrogate, and human rights that allow for
restrictions in the interest of public policy considerations. The breakout addressed
questions such as how a human rights culture can be fostered within parliaments,
making it a natural part of the legislative process to consider Convention issues, and
how to ensure that the necessary knowledge and expertise on Convention law is
present in the legislative process? Participants observed that both the Brighton and
Brussels declarations made specific reference to the role of national parliaments, inter
alia by agreeing on a number of practical measures designed to achieve better
national implementation of the Convention, including by providing national
parliaments with information about the compatibility with the Convention of draft
legislation. A number of participants questioned whether national parliaments have
the necessary motivation to get involved in human rights issues. Parliamentarians, it
was pointed out, do not always see the connection between their work and the
development of human rights standards. They therefore need support. In this regard
it was important to be aware of the fact that Members of Parliament often play a dual
role, being defenders of international human rights on the one hand, but also national
politicians having to meet sometimes conflicting expectations of their democratic
electorate, on the other hand.
Appendix
 Programme, High-Level Expert Conference “2019 and Beyond – Taking
Stock and Moving Forward from the Interlaken Process”, 22 to 24 November
2017, Kokkedal Castle
 List of Participants, High-Level Expert Conference “2019 and Beyond –
Taking Stock and Moving Forward from the Interlaken Process”, 22 to 24
November 2017, Kokkedal Castle


Slotsholmsgade 10
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Til Den Danske Delegation til Europarådets Parliamentariske Forsamling
Vedlagt fremsendes relevant materiale fra den internationale ekspertkonfe-
rencen om reform af det europæiske menneskerettighedssystem, som rege-
ringen afholdt på Kokkedal Slot den 22.- 24. november 2017 som del af det
danske formandskab for Europarådets Ministerkomité.
Der vedlægges program, deltagerliste og møderapport indeholdende resu-
méer af de afholdte hovedindlæg og opsummering af de 14 gruppedrøftel-
ser, som blev afholdt under konferencen.
Jeg vil samtidig gerne benytte lejligheden til at takke for delegationens del-
tagelse i konferencen og for den interesse, som delegationen viser Danmarks
formandskab for Europarådets Ministerkomité, herunder regeringens prio-
ritet om fortsat reform af det europæiske menneskerettighedssystem.
Med venlig hilsen
Søren Pape Poulsen
Den Danske Delegation til Europarådets Parliamentariske Forsamling
Christiansborg
1240 København K
Justitsministeren
Dato: 21. december 2017
Dok.: 614382
Europarådet 2017-18
ERD Alm.del Bilag 4
Offentligt


List of Participants
High-Level Expert Conference
Wednesday 22 to Friday 24 November 2017
Kokkedal Castle, Denmark
Europarådet 2017-18
ERD Alm.del Bilag 4
Offentligt
Açıkgül, Hacı Ali
Head of Department
Human Rights Department, Ministry of Justice
Turkey
Amin, Asif Parbst
Head of Department
International Legal Department, Ministry of Defence
Denmark
Aversano, Maria
Co-Agent before the European Court of Human Rights
Ministry of Foreign Affairs
Italy
Bang, Martin
Deputy Head of Division
ECHR Initiative, Ministry of Justice
Denmark
Behrens, Hans-Jörg
Government Agent before the European Court of Human Rights and Vice-Chairman of the CDDH
Federal Ministry of Justice
Germany
Bertelsen, Barbara
Permanent Secretary
Ministry of Justice
Denmark
Bilikhodze, Mariam
Head of Litigation Unit
Department of State Representation to International Courts, Ministry of Justice
Georgia
Bramsen, Trine
Member of the Legal Affairs Committee
The Danish Parliament
Denmark
Bubnyte, Karolina
Government Agent before the European Court of Human Rights
Ministry of Justice
Lithuania
Buttigieg, Victoria
Assistant Attorney General
Office of the Attorney General
Malta
Bürli, Nicole
Legal Expert
World Organization Against Torture
Geneva, Switzerland
Çalı, Başak
Professor of International Law
Hertie School of Governance
Berlin, Germany
Castello-Branco, Maria José
Legal Adviser
Ministry of Justice
Portugal
Christensen, Trine
Secretary General
Amnesty International Denmark
Denmark
Christoffersen, Jonas
Executive Director
Danish Institute for Human Rights
Denmark
Demosthenous, Ioanna
Legal Adviser
Permanent Representation of the Republic of Cyprus to the Council of Europe
Strasbourg, France
Dimitrova, Maria
Government Agent before the European Court of Human Rights
Ministry of Justice
Bulgaria
Dolt, Frédéric
Private Office Adviser
Council of Europe
Strasbourg, France
Ezer, Oana Florentina
Legal Adviser
Ministry of Foreign Affairs
Romania
Flodin-Janson, Ulrika
Head of Division
Secretariat of the Committee of Ministers, Council of Europe
Strasbourg, France
Galperin, Mikhail
Government Agent before the European Court of Human Rights
Ministry of Justice
Russia
Giakoumopoulos, Christos
Director General
Directorate General of Human Rights and Rule of Law, Council of Europe
Strasbourg, France
Gisladottir, Elisabet
Legal Adviser
Ministry of Justice
Iceland
Henriksen, Martin
Member of the PACE Delegation
The Danish Parliament
Denmark
Holst-Christensen, Nina
Co-Agent before the European Court of Human Rights and Commissioner in EU Law and Human
Rights
Ministry of Justice
Denmark
Jensen, Michael Aastrup
Chairman of the PACE Delegation
The Danish Parliament
Denmark
Jensen, Mogens
Vice-Chairman of the PACE Delegation
The Danish Parliament
Denmark
Kaczmarska, Marta
Senior Expert
Ministry of Foreign Affairs
Poland
Kieffer-Kristensen, Rasmus
Head of Division
ECHR Initiative, Ministry of Justice
Denmark
Kirstein, Charlotte Hellner
Senior Legal Adviser
Department for International Law, Human Rights and Treaty Law, Ministry of Foreign Affairs
Sweden
Kokona, Elira
Secretary General
Ministry of Justice
Albania
Konz, Brigitte
Director
Justice of Peace
Luxembourg
Koopman, Babette
Government Agent before the European Court of Human Rights
Ministry of Foreign Affairs
Netherlands
Kuurberg, Maris
Government Agent before the European Court of Human Rights
Ministry of Foreign Affairs
Estonia
Larsen, Thomas Viskum Lytken
Deputy
Permanent Representation of Denmark to the Council of Europe
Strasbourg, France
Leach, Philip
Professor of Human Rights Law and Director
The European Human Rights Advocacy Centre, Middlesex University London
United Kingdom
Licis, Kristine
Government Agent before the European Court of Human Rights
Ministry of Foreign Affairs
Latvia
Liddell, Roderick
Registrar
European Court of Human Rights
Strasbourg, France
Linham, Rob
Assistant Director for Europe and Domestic Human Rights
Ministry of Justice
United Kingdom
Lobov, Mikhail
Head of Department
Human Rights Policy and Co-operation Department, Council of Europe
Strasbourg, France
Madsen, Mikael Rask
Professor and Director
iCourts, University of Copenhagen
Denmark
Memeti, Naim
Ambassador
Embassy of Macedonia in Denmark
Denmark
Merloz, Florence
Assistant Director of Human Rights
Department of Legal Affairs, Ministry of Europe and Foreign Affairs
France
Miller, Alan
Professor and Chairman
European Network of National Human Rights Institutions
Brussels, Belgium
Niedlispacher, Isabelle
Government Agent before the European Court of Human Rights
Ministry of Justice
Belgium
Ohms, Brigitte
Deputy Government Agent before the European Court of Human Rights
Division for International Affairs and General Administrative Affairs, Federal Chancellery
Austria
Oinonen, Krista
Government Agent before the European Court of Human Rights and Director
Unit for Human Rights Courts and Conventions, Ministry of Foreign Affairs
Finland
Özçeri, Havva Yonca Gündüz
Deputy General Director
Ministry of Foreign Affairs
Turkey
Pavličić, Valentina
Government Agent before the European Court of Human Rights
Ministry of Justice
Montenegro
Pillay, Róisín
Director
Europe Regional Programme, International Commission of Jurists
Geneva, Switzerland
Pirošíková, Marica
Government Agent before the European Court of Human Rights
Ministry of Justice
Slovakia
Pivk, Vesna Pavlič
Judge
Ministry of Justice
Slovenia
Plavšić, Nataša
Government Agent before the European Court of Human Rights
State Attorney’s Office
Serbia
Polakiewicz, Jörg
Director
Directorate of Legal Advice and Public International Law, Council of Europe
Strasbourg, France
Pouget, Shirley
Advocacy Officer
Open Society Justice Initiative, Open Society Foundations
New York, United States
Poulsen, Søren Pape
Minister of Justice
Denmark
Raimondi, Guido
President
European Court of Human Rights
Strasbourg, France
Ramu, Sebastien
Deputy Director for the Law and Policy Programme
Amnesty International
London, United Kingdom
Ravera, Jean-Laurent
Government Agent before the European Court of Human Rights
Department for External Affairs
Monaco
Rehfeld, Tobias Elling
Under-Secretary and Government Agent before the European Court of Human Rights
Ministry of Foreign Affairs
Denmark
Revencu, Ruxanda
Government Agent before the European Court of Human Rights
Ministry of Justice
Moldova
Ruud, Morten
Special Adviser
Ministry of Justice
Norway
Rørdam, Thomas
President
Supreme Court of Denmark
Denmark
Salas, Alfonso de
Head of Division
Human Rights Intergovernmental Cooperation Division, Council of Europe
Strasbourg, France
Schirmer, Günter
Head of Department
Legal Affairs and Human Rights Department, Council of Europe
Strasbourg, France
Schorm, Vít Alexander
Government Agent before the European Court of Human Rights
Ministry of Justice
Czech Republic
Schürmann, Frank
Government Agent before the European Court of Human Rights
Federal Office of Justice
Switzerland
Spano, Robert
Judge and Section President
European Court of Human Rights
Strasbourg, France
Stažnik, Štefica
Government Agent before the European Court of Human Rights
Ministry of Justice
Croatia
Søndergaard, Jens Teilberg
Deputy Permanent Secretary
Ministry of Justice
Denmark
Søndergaard, Søren
Member of the PACE Delegation
The Danish Parliament
Denmark
Tallódi, Zoltán
Government Agent before the European Court of Human Rights
Ministry of Justice
Hungary
Toporikov, Dmitry
Attaché
Russian Embassy in Denmark
Denmark
Ulfstein, Geir
Professor
Department of Public and International Law, University of Oslo
Norway
Vajić, Nina
Chairperson of the Panel of Experts on Candidates for Election as Judge to the European Court of
Human Rights
Council of Europe
Strasbourg, France
Venzke, Ingo
Associate Professor and Director
Amsterdam Center for International Law, University of Amsterdam
Netherlands
Villarreal, Alfonso Brezmes Martinez de
Senior State Attorney
Human Rights Department, Ministry of Justice
Spain
Weber, Anne
Legal Adviser
Office of the Commissioner for Human Rights, Council of Europe
Strasbourg, France
White, Peter
Government Agent before the European Court of Human Rights
Department of Foreign Affairs and Trade
Ireland
Wickremasinghe, Chanaka
Legal Counsellor and Government Agent before the European Court of Human Rights
Foreign and Commonwealth Office
United Kingdom