Joint NGO Response to the Draft Copenhagen Declaration on the European Convention on Human Rights system

Civil society organisations,including the undersigned, have participated in discussions on the developmentand reform of the Convention system throughout its history, and in particular,have closely followed and contributed to the current phase of the reform debatesince its initiation at Interlaken in 2010. From this engagement and from our collective experience in working toprotect human rights across the Council of Europe region, we are more convincedthan ever that the viability and health of the Convention system is cruciallydependant on better national implementation of the Convention rights. Accordingly,practical action to implement the Convention rights at national level, and tosupport and supervise this implementation, must be the urgent and sustainedpriority of the State Parties in their efforts to strengthen the Conventionsystem.

We therefore welcome the sectionsof the draft Declaration that address national implementation and execution ofjudgments. However we regret that, incontrast to the 2015 Brussels Declaration, the overall emphasis of concern hasmoved away from these urgent matters. Without effective national implementation, the principle of subsidiarityis merely theoretical, and the problems of the Court’s caseload cannot besatisfactorily or sustainably resolved. This message should be conveyed in strongnon-equivocal terms in the Declaration that is to be adopted in April.Furthermore, we consider that effective execution of judgments, which isclosely linked to national implementation, should be prioritised and made moreprominent in the Declaration, and addressed alongside the section on nationalimplementation.

Better national implementationalso depends on the effective scrutiny and supervision carried out by theCouncil of Europe institutions, in particular the Court. Subsidiarity meansthat the primary responsibility for the protection of Convention rights lies atnational level: it does not circumscribe the Court’s role in supervising theobservance of State Parties’ obligations under the Convention. It is vital thatthe independence, authority and role of the Court be maintained, and that theright of individual application be preserved. We therefore welcome the draftDeclaration’s acknowledgement that the right to individual application is acornerstone of the Convention system. However we are concerned at proposals andlanguage in many places in the Draft Declaration, in particular in regard tothe proposed “dialogue” between State Parties and the Court, that riskundermining the independence and authority of the Court. It is essential thatnothing in the Declaration provides a pretext for political pressure on theCourt. We make specific recommendationsbelow for amendments necessary to ensure the full respect of the Court’sindependence.

It should also be emphasised atthe outset that the integrity and authority of the Convention system, as withany system for international human rights protection, depends on upholding theprinciple of the universality of human rights. The draft Declaration’s emphasison subsidiarity must not lead to the fragmentation of European human rightsprotection or undermine the universality of human rights. We make specific recommendations below toreflect this.

Finally, we are concerned thatsome language of the draft Declaration, in particular references to the engagementof “States Parties and their populations” in debates on the Convention rights,may support claims that the interpretation of Convention rights should beconditioned by majority views. Given thevital role which the Convention system has played in protecting the rights ofdiscriminated-against minorities across the Council of Europe region, any suchsuggestion should be avoided.

A detailed commentary andproposals on the draft Declaration can be found in the PDF attached.