Changing the European human rights system once again : the wise persons spoke, but did they speak wisely?

Abstract

In order to cope with the mounting caseload of the European Court of Human Rights, the functioning of the supervisory mechanism under the European Convention on Human Rights (ECHR) is under constant revision or reform. While eagerly awaiting the entry into force of Protocol No. 14 to the ECHR, a 'Group of Wise Persons' was established by the Council of Europe to evaluate the long-term effectiveness of the system. In this contribution it is argued that most of the proposals withheld by the Wise Men and Women, if implemented, while sometimes useful, will certainly not save the Strasbourg system, because the basis of the system is unsound. Future discussions should focus on a real in-depth debate on and a clear redefinition of the ambition of the system, most probably tending towards constitutional justice, followed by an equally sound, in-depth reform of the mechanism, possibly introducing a certiorari system and a preliminary ruling system. A smaller but well-financed European Court that may be evolving towards becoming a constitutional court of human rights should then be given more adequate tools to compel unwilling states and the Commissioner for Human Rights should be given an active role within the complaints system. Such a Court could finally render less, well-reasoned judgments within a shorter notice.