10 July 2013

Who are human rights really for? (Vol. 2)

The European Court of Human Rights comes in for a lot of stick. In the UK, this has traditionally taken the form of British nationalist hostility to the very idea of international judicial institutions, seasoned with a sprinkling of hang 'em and flog 'em illiberalism, objecting to a particular judgment. 

One consequence of the Court's persistent frailty is that its proponents and defenders have, in general, being loathe to question or critique how it goes about its business, or how well the tribunal realises or can realise the grand ideals of human rights, day to day.  

As I've argued here and elsewhere before, I think this coyness is mistake, and there are plenty of issues, particularly in terms of access to justice in Strasbourg, where a "left" critique of the Court's work is far more apposite, and more urgent, than your usual Nigel Farage by-lines about national sovereignty, or Theresa May's fevered anxieties about "Europe's war on British justice".  Increasingly, in the name of efficiency, and of streamlining, the very folk human rights were conceived of to protect are at risk of being squeezed out of the Strasbourg docket.

On that theme, I've a new post over at the UK Human Rights blog this morning, on the latest reforms to how the Court works. They are, I suggest, pitched to make it even more difficult for unrepresented litigants, and the most vulnerable folk across the Council of Europe.  Here's a taster:

Radical changes are afoot in Strasbourg. Protocol No. 15, whose outlines were agreed at the Brighton Conference of 2012, is primed for ratification, while at the start of 2014, new Rules of Court will come into effect. Both have the potential to have a wide-ranging impact on applicants. Protocol 15 rewrites the Convention’s preamble, emphasising the Court’s “subsidiary” role in the protection of human rights.

It also modifies two of the admissibility criteria for petitions, pairing back the safeguard clauses initially erected around Protocol 14’s new criteria of “no significant disadvantage” and trimming the time available for applicants to lodge their cases from six months to four.

As I have written elsewhere, these changes are unlikely to trouble the small number of wealthy litigants whose cases have already been aired in the highest domestic courts before finding their way onto the European Court’s docket. By contrast, the changes to time-limits, compounded by the Court’s new Rules, risk having a disproportionate effect on the poorest and most vulnerable applicants, with the least access to legal advice, subject to the worst outrages at the hands of their states.

In 2011, without issuing any public statement on the enterprise, the Court’s Registry embarked on the Blowfeldian-sounding “Rule 47 Project”. A “pilot” filtering scheme, the Registry began to hold applications to far more stringent, formalistic criteria. One of the few available insights into the Project is afforded in evidence from a Registry official to a Council of Europe Committee. Mr Darcy told the Committee that it:

“… entailed a stricter approach by the Registry to the formal requirements for submitting an application, as set out in detail in Rule 47 of the Rules of Court. Failure to provide all of the required information would lead to the rejection of the application by the Registry. The applicant would be informed by letter that their application had not been accepted for judicial consideration. This notification was final. The applicant could not submit a new application form, even within the six-month period.”

Innocuous? No, wait....

You can read the rest of the post, in full, here.

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