A Danish Crusade for the Reform of the European Court of Human Rights

Tomorrow (15 November) Denmark will take over the rotating chairmanship of the Council of Europe (CoE). The CoE was established in 1949 and has since adopted numerous treaties, including the 1950 European Convention on Human Rights (ECHR). Denmark is a CoE founding member and has traditionally been a strong supporter of human rights. Yet the Danish Government has announced that the chief priority of its chairmanship will be the reform of the European human rights system. This announcement may come as a surprise to the readership of this blog. This post therefore summarises the vicissitudes that have led to the Danish Government’s initiative, and provides some early reflections on its expected impact.

Why does Denmark want a reform?

Immigration has long been a dominant theme in Danish politics. In the late 1990s, the Danish People’s Party (DPP) began to denounce immigration, multiculturalism and Islam as alien to Danish society and values. Since 2001, the DPP has supported various minority coalition governments and gained extensive influence on Denmark’s immigration policy, which is now one of the most restrictive in Europe.

Critique of the ECHR is not new in Denmark, where much debate has focused on the influence of the Convention on the deportation of the foreign criminals. In May 2016, the Danish Supreme Court delivered a judgment which reignited the debate, by preventing the deportation of a notorious convicted criminal and Croatian national, Gimi Levakovic. Despite Levakovic’s egregious criminal record, the Supreme Court found that his deportation would constitute a disproportionate interference with his right to respect for private and family life – protected both under EU law and ECHR. The Court justified its decision by emphasising that Levakovic had no real ties to Croatia, which he had not visited since he came Denmark at the age of three. It further noted that Levakovic had four children in Denmark, two of which were minors under his sole custody.

The decision by the Supreme Court caused a maelstrom. Public outrage was fuelled by the fact that Levakovic was a household name, after he had appeared on a 2015 Danish TV documentary, controversially titled: ‘The gypsy boss and his notorious family’. Politicians across the political spectrum have since called for reform of the European human rights system. The current minority centre-right coalition, consisting of three parties and supported by the DPP, adopted a political agreement in November 2016, which stated the need to:

critically review the way in which the dynamic interpretation of the European Court of Human Rights has broadened the scope of parts of the European Convention on Human Rights…

What would the reform entail?

The objective of the Danish Government’s proposed reform is somewhat unclear. The Government has published a list priorities, which include:

1. The European human rights system in a future Europe
2. Equal opportunities
3. Involvement of children and young people in democracy
4. Changing attitudes and prejudices about persons with disabilities
5. Combating torture

The Minister of Justice has explained that the Government will use the chairmanship to focus on the European Court of Human Rights’ (ECtHR) dynamic interpretation of the Convention, which he thinks has gone too far. At a conference hosted by Copenhagen University, he referred to a controversial opinion poll showing limited public support for continued membership of the ECHR – unless it is reformed. This sentiment was reiterated by the Danish Prime Minister during a recent visit to Denmark by the CoE Secretary General, Thorbjørn Jagland. The Prime Minister said:

In Denmark… we have a critical debate about the expansive interpretation by the European Court of Human Rights, in particular on the question of the deportation of foreign criminals. It does not resonate with the general public understanding of human rights when hard core criminals cannot be deported. And I must admit, I cannot understand it…

He also suggested that national governments should have better means to influence the ECtHR’s interpretation of the ECHR. It is not, however, clear what he meant by this suggestion. The Prime Minister announced that the Government intends to propose a follow-up on the Brighton Declaration, which led to Protocol 15 introducing several amendments to the ECHR, including preambular references to the ‘principle of subsidiarity’ and the ‘doctrine of the margin of appreciation’. These amendments will enter into force once all CoE Member States have expressed their consent. According to the Danish Prime Minister, a declaration adopted under the Danish chairmanship would emphasise respect for local practices and the possibility for third party intervention in cases before the ECtHR.

Is there a need for reform?

The ECtHR has already been reformed in recent years. In 2015, a CoE report concluded:

In view of the positive results of the Court’s reforms so far, the challenge of clearing the backlog of non-repetitive priority and non-priority cases may entail allocating additional resources and more efficient working methods rather than introducing a major reform.

The report was adopted by the CoE Committee of Ministers in March 2016 and Denmark has struggled to garner support for further reform, with the possible sole exception of Hungary.

It also is worth pointing out that Art. 36(2) ECHR already allows third party intervention, but Denmark has only once intervened before the ECtHR, whereas other States have been more active. By comparison, last year alone Denmark intervened in 34 cases before the European Court of Justice. For this reason, ECtHR Judge Jon Fridrik Kjølbro has recently urged Denmark to engage more actively in Strasbourg. He and the Icelandic judge have openly questioned the need for further reform of the ECHR, noting that member States have a broad margin of appreciation in relation to deportation. Citing recent ECtHR decisions (Salem, Hamesevic, and Alam) Judge Kjølbro has pointed out that the court rarely second guesses national deportation decision, as long as there is evidence of a fair balance being struck between the individual’s rights and community interests.

What will happen next?

The first step in the Danish Government’s reform strategy is a High-level Expert Conference ‘2019 and Beyond – Taking Stock and Moving Forward from the Interlaken Process’, which will take place in Denmark on 22-24 November 2017. Little information on this conference has been made publicly available. Given the paucity of details provided by the Danish Government, it is difficult to predict what the proposed reforms will concretely entail. Quite recently, however, the Government seems to have changed tack. While criticism was initially focused on the ECtHR, the Prime Minister noted in the above-mentioned press conference that Danish courts might have over interpreted the ECHR. This analysis has received the endorsement of the Danish Institute of Human Rights. Only time will tell whether the Danish Government will continue to pursue their crusade against the European human rights system, or whether they will decide to target their attention towards domestic courts, instead.

Author’s Note: This blogpost draws on a forthcoming publication: Danmark og Den Europæiske Menneskerettighedskonvention (Ex Tuto, 2017) Denmark and the European Convention on Human Rights (in Danish)

For more information, see the collection of documents available at: https://sites.google.com/site/dkogeuroparaadet/artikler-om-dk-og-europaraadet (mostly in Danish)