By: Daria Stanculescu, Junior Research Associate, PILPG-NL
On April 21, 2021, Italy ratified Protocol No. 15 (the Protocol) to the European Convention on Human Rights (ECHR, the Convention). This ratification triggered the entry into force of the Protocol for all member states of the ECHR from August 1, 2021. The Protocol brings several substantial amendments to the Convention’s provisions with regards to the functioning of the European Court of Human Rights (ECtHR, the Court). These changes include shortening the time limit for bringing applications to the Court from six to four months, changing the upper age limit for judges, and removing the right of parties to object to the relinquishment of jurisdiction to the Grand Chamber. Arguably, the Protocol’s most significant amendment is the addition of a reference to subsidiarity and the doctrine of the margin of appreciation in the Convention’s Preamble. This blog post examines the effects that these references in the Convention’s Preamble will have on the ECHR system after the amendments enter into force on August 1.
Background to Protocol 15
During the Brighton Conference, one of the High-Level Conferences on the Future of the Court aimed at developing strategies for the long-term future of the Convention system, the member states adopted Protocol 15. It opened for signature on June 24, 2013. Since the Protocol brought about significant changes to the Convention system, the consent of all 47 member states to the ECHR was made a condition for its entry into force.
One of the main changes agreed upon at the Brighton Conference was the incorporation of subsidiarity and the margin of appreciation in the Preamble. The principle of subsidiarity means that the national authorities of the member states of the Convention have the primary task of ensuring that the rights in the Convention are respected. The Court should only intervene where domestic authorities fail to protect such rights. The margin of appreciation is a doctrine developed by the ECtHR in its case law. It describes the degree of discretion the Court affords states when taking measures at the national level that would otherwise limit or interfere with rights afforded by the ECHR. In cases where the Court gives states a wide margin of appreciation, it will not engage in a complete review of the substance, but will generally accept the choices made by domestic authorities.
The Effects of the Changes
It can be debated whether the changes introduced by Protocol 15 will have a significant effect on the functioning of the Court. On the one hand, the insertion of subsidiarity and the margin of appreciation emphasizes the principle that national authorities are primarily responsible for protecting human rights. They are also responsible for providing remedies for violations or rights. This may mean that the Court will defer to the national authorities more often, especially when it believes an in-depth assessment of the issue has already been carried out at the national level. However, it is more likely that the addition will instead contribute to better judicial dialogue between national courts and the ECtHR. This means that the ECtHR will take into consideration how a case has been handled at national level when issuing judgments. Judicial dialogue may encourage national authorities to take a more active role in resolving human rights issues at the national level, before they reach the ECtHR. This, in turn, may contribute to lowering the caseload of the Court, which has been under pressure in recent years due to the number of pending applications before the ECtHR.
On the other hand, it may be argued that the additions will not bring a remarkable change to the Convention system. Since the Court already makes use of subsidiarity and the margin of appreciation in its case law, the addition of these mechanisms to the Preamble of the Convention may be regarded as merely symbolic. After all, the ECtHR remains the final interpreter of the Convention.
Conclusion
Whether the inclusion of subsidiarity and the margin of appreciation in the Preamble of the ECHR will have a notable effect on the functioning of the Court is currently unclear. These changes may drive the Court to defer to national authorities or lead to closer dialogue between the ECtHR and national courts. However, these amendments can also be seen as merely symbolic. It remains to be seen whether the Protocol will bring any significant changes to the Convention system. Much of this depends on how the Court applies the newly added principles and whether it will give them more weight now that they are included in the Preamble of the Convention.