The European Court of Human Rights’ (ECtHR) is planning to amend Rules 36 and 44 of the Rules of Court which concern, in the words of the Court, representation of “vulnerable adults”. In response to these proposed amendments, Validity with other 14 non-governmental organisations (NGOs) and two law offices submitted a comprehensive response urging further consultation to ensure that vulnerable applicants retain their right to fair legal representation.
The group emphasised the importance of access to justice for all individuals, including persons with disabilities and others, such as migrants or children which may be perceived at a given moment in time to be in a vulnerable position. The submission highlighted concerns regarding the principles of agency, the vagueness of the amendments, and the potential exacerbation of power imbalances in legal proceedings.
Key Concerns Highlighted in the Submission:
- Agency and Autonomy: The proposed amendments could undermine the rights of applicants by allowing the Court to override their preferences for legal representation. The submitting organisations call for the Court to prioritise the will of applicants.
- Vagueness and Legal Uncertainty: The amendments are criticised for their lack of clarity regarding the assessment of vulnerability, which could lead to arbitrary interpretations and hinder the autonomy of applicants in choosing their legal representatives.
- Power Imbalance: The current proposals envisage that the governments, also the defending party in the proceedings, shall be in charge of legal representation of applicants. As such, the amendments do not address the existing power imbalances between applicants and governments, potentially compromising the effectiveness of legal representation in cases where state actions are contested.
- Domestic Law Deferral: The submitting organisations argue that deferring to domestic laws for the appointment of legal representatives undermines the autonomous nature of legal representation within the ECtHR, which is essential for protecting applicants’ rights.
Recommendations for the Court:
In light of these concerns, the submitting organisations respectfully request that the Court:
- Clarifies that the preferences of applicants should guide the appointment of their legal representatives.
- Establishes a procedure allowing applicants to challenge appointed representatives.
- Avoids deferring to domestic laws regarding representation, instead relying on the Court’s own interpretation.
- Ensures that the government does not appoint representatives, advocating for an independent system to select qualified legal counsel.
The submitting organisations look forward to engaging in further consultations with the Court to refine these proposed amendments and protect the rights of all applicants.