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

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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)

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Sancho says

November 14, 2017

I can't speak for others, but "crusade" is not the first word that I would link to "human rights"..

Stefan Trechsel says

November 14, 2017

It's Politics vs. the law once more. There do not seem to be arguments invoked to deny the fact that
- even a notorious criminal is a human worthy of a certain protection
- deportation can have devastating effects on other family members, in particular children
- deportation is discriminatory as criminal nationals will not be deported; basically, if society can live with domestic criminals, why not with foreigners, particularly when they are only foreigners on paper
- while perceived dangerousness cannot justify deprivation of liberty, other measures are available, for instance limitations of the freedom of movement.

Alan Ritchie says

November 15, 2017

Why should society 'live' with foreign criminals?

As a guest in my house you behave or leave, end of discussion. Family members I can discipline/sanction etc if neccessary. but I do not need to tolerate disrespect from outsiders

Ivo says

November 16, 2017

Why should society 'live' with foreign criminals?

Because almost none of us chose to be part of a specific society, we were simply born into it. It is illogical to assign any positive consequence (such as the right to discriminate against 'foreign criminals') on the basis of such random fact. If, say, a European did not have any merit in being born in Europe, did nothing to deserve it except being born there by pure chance, why should we add legal privileges to the already huge factual advantages stemming from such a random occurrence?

Carl Gardner says

November 16, 2017

The argument about the effects on innocent children is a reasonable one, and I too agree that with what you might call an "ordinary, low level" criminal, deportation is often disproportionate.

But I think there's a difficulty with arguing that "where you're born is chance, therefore societies should just live with all foreign criminals".

The end logic of that approach, surely, is that there should be no immigration controls at all. After all, where you're born is chance, so why should you be discriminated against by not having an automatic, permanent right to live wherever you want? The argument is stronger for reasonable, law-abiding people than it is for violent offenders.

If one of your own citizens is a serious criminal, then there's no where else for him to go; and it's wrong to try and dump him elsewhere for some other community to have to rehabilitate or control them. So they have to stay.

But otherwise I think it's reasonable for any community to want to expel any incomer who's a dangerous, violent offender—certainly if that person came as an adult. If you think immigration control has any legitimacy at all, then surely excluding and removing dangerous, violent criminals is the least difficult sort of immigration rule to justify.

I think a more interesting question is whether it's reasonable to "dump" on another society someone who is technically foreign but actually grew up in your country, so that your own society is partly responsible at least for some of the environmental causes of their criminality. That of course gets us into the nature-nurture debate.

Jakob Cornides says

November 17, 2017

It does not come out quite clear from this post whether the reform process that is being proposed is occasioned by, and focussed on, solely the ECtHR's controversial policies on migration, or whether there is a wider perspective. Is migration the lense through which the Danish Government views the shortcomings of the ECtHR, or is it the lense through which the author of the post views the Danish initiative?

In my humble view, the ECtHR needs a far more fundamental reform - one that is not just an ad hoc reaction to the migration crisis. While there are good reasons to view the Court's case law on migration very critically, I think there are other decisions that are far more disturbing, as they reveal both a n array of questionable moral attitudes, and an apparent lack of foundation in the law. Think for example of the cases Paradiso & Campanelli vs. Italy, in which the Court essentially created a "right to human trafficking": a couple that has purchased from a Muscovite "reproduction clinic" a child with which it has no biological relationship whatsoever must be allowed to keep it. Or consider the Charlie Gard Case: a couple brings their infant child to a hospital, only to learn that the doctors, jointly with a government-appointed "legal guardian", have determined that it is "in the child's best interest" to be euthanized. Astonishingly, the ECtHR found no fault with this "forcible euthanasia", imposed by state agents against the will of the parents and based merely on assumptions regarding the child's "hypothetical will" (certainly not on any utterances of will the child really had made...).

Some urgent proposals:

- Find ways to select better judges for the ECtHR (preferable persons who are real judges, not professors without any professional background in the judiciary)!

- re-introduce the European Human Rights Commission as a filter mechanism, so as not to allow the Court to itself hand-pick the cases it will hear. In essence, the 11th Protocol should be re-considered - its effects have been nefarious.

- Ensure that ECtHR Decisions will be based on the actual content of the ECHR that States have agreed upon, not on fluid "living instrument" theories. A good way of achieving this would be to subject the Convention to the interpretive rules of the Vienna Convention.

riccardopavoni says

November 18, 2017

Dear Jakob,
the following can't be reforms, the following would mean destroying the ECtHR, or rather going back to square zero, in the 1950s... it would be more coherent to plead for the abolition of the ECtHR altogether, then...

– Find ways to select better judges for the ECtHR (preferable persons who are real judges, not professors without any professional background in the judiciary)!

– re-introduce the European Human Rights Commission as a filter mechanism, so as not to allow the Court to itself hand-pick the cases it will hear. In essence, the 11th Protocol should be re-considered – its effects have been nefarious.

– Ensure that ECtHR Decisions will be based on the actual content of the ECHR that States have agreed upon, not on fluid “living instrument” theories. A good way of achieving this would be to subject the Convention to the interpretive rules of the Vienna Convention.

Jakob Cornides says

November 19, 2017

Dear Riccardo,

I find your contribution quite strange:

- my proposal to "find ways to select better judges" should as such be quite uncontroversial. How would finding better judges "destroy the ECtHR"? Is it a court that can only work with bad judges? And how would that proposal "lead back to the 1950s? Do you think the judges were better then than they were now? If so, would it not be a good idea to return to the quality level that was reached then?

- Do you really mean to say that "ensuring that ECtHR Decisions will be based on the actual content of the ECHR", or subjecting the ECHR to the interpretive rules of the Vienna Convention" would destroy the Court? How so? Is it not normal for a law court to base its decisions on the law, and abnormal to issue decisions that have no sound legal basis?

Your assumptions regarding the functions of law courts must be quite unusual, and in fact your contribution seems to unwittingly prove my point.... there really is need for reform.