Is Strasbourg obsessively interventionist? A view from the Court – Paul Harvey

24 January 2012 by Guest Contributor

Andrew Tickell in his recent post (Is the European Court of Human Rights obsessively interventionist?) makes a number of important points about the European Court of Human Rights’ approach to admissibility, in particular the application of the manifestly ill-founded criterion. Perhaps understandably, the majority of legal scholars have preferred to focus on the more substantive aspects of the Court’s work and its leading judgments.

However, Tickell’s analysis, and his other efforts to ensure that the less glamorous work of the Court on admissibility are not overlooked, must be welcomed, both as redressing that balance and informing the wider debate on the proper role of the Court. This post seeks to build on his contribution by providing an overview of the Court’s approach to admissibility in applications brought against the United Kingdom.

As will be apparent, such an overview is necessarily impressionistic: it would be impossible for the Court to maintain detailed statistics on the reasons why applications are rejected without devoting a disproportionate of time and resources to the task. Nonetheless, the following points may be made.

First, Tickell is entirely correct that the overwhelming majority of cases lodged against the UK are declared inadmissible. In 2010, 1,175 UK applications were declared inadmissible; only 23 – less than 3 per cent of the total – resulted in a judgment of the Court, several of which ended in findings of no violation. Preliminary figures for 2011 confirm that trend. In 2011, the Court disposed of 955 applications against the UK. It found a violation of the Convention in only eight cases. (Tickell is also correct that this represents a much lower “rate of defeat” for the UK than some other Contracting States.)

Second, it is very difficult to break down the 955 inadmissible applications into clear categories. A sizeable proportion of the cases will be inadmissible on more than one ground, and the recorded ground for admissibility may simply be the most obvious or expeditious (for instance, if an application is manifestly ill-founded and is submitted five years after the final domestic decision, it may be more appropriate to reject it under the six months rule).

Third, as Tickell concludes, it is readily apparent that the Court is already making extensive use of the “manifestly ill-founded” criterion, though I would not agree with his view that this is a “highly discretionary concept”. It is, in my respectful view, no more discretionary or subjective than equivalent domestic criteria such as “no reasonable prospect of success” and, in the hands of an experienced Single Judge, assisted by Non-Judicial Rapporteurs, should give no cause for concern.

Of course, there is a great deal of variety in the complaints made in the 955 applications which were declared inadmissible last year. However, it is also worth noting that the vast majority fall into the following categories:

• applicants who are delusional and make outlandish allegations against State bodies or private persons;

• -applicants challenging vexatious litigants orders and whose cases are rejected because the orders are a proportionate limitation on the right of access to court (H. v. the United Kingdom, no. 11559/85, Commission decision of 2 December 1985, Decisions and Reports (DR) 45, p. 281);

• fourth instance” applications (where applicants are simply challenging the outcome of court proceedings, on no other ground than that the domestic tribunal has erred in its factual findings); and

• cases which have been fully argued before the domestic courts, and all relevant Convention arguments have been considered and dismissed.

Of the latter two categories, four areas of law account for the bulk of the Court’s work: criminal law, employment law, family law and immigration law.

Perhaps because of the availability of interim relief under Rule 39 of the Rules of Court, the last area, immigration law, is by far the biggest. In 2011, approximately 429 applications brought by non-UK nationals challenging their deportation or removal from the United Kingdom were declared inadmissible by the Court.

In about three-quarters of these cases, the application was struck out because the applicant failed to pursue his or her application, normally after a Rule 39 request to halt the removal had been refused. The remaining quarter were declared inadmissible as manifestly ill-founded, usually because the applicant’s complaints under Article 3 and/or Article 8 of the Convention had been thoroughly considered and rejected by the domestic authorities.

Finally, Tickell is correct to record that practitioners are often dismayed when applications they have submitted are rejected as manifestly ill-founded. That feeling of dismay is understandable, particularly if the case has been rejected by the Single Judge and thus the decision is unreasoned (for further academic criticism of the practice see, for instance, H, Keller et al, Debating the Future of the European Court of Human Rights after the Interlaken Conference: Two Innovative Proposals (2010) 21:4 EJIL 1025–1048.

However, a number of points may be made in defence of this practice.

First, it is not unusual for appeal courts to decline to give individualised decisions when they refuse to hear a case: the Supreme Court, for instance, has continued the previous practice of the House of Lords in informing those who have unsuccessfully sought leave to appeal that “the application did not raise an arguable point of law of general public importance which ought to be considered… at this time”. Arguably the Court, as an international court should be just as – if not more – selective in choosing which cases should receive fully reasoned decisions than the senior courts of the Contracting States.

Second, there is nothing to prevent the Single Judge referring an application to a Chamber of the Court for its consideration, if he or she feels that the decision on admissibility is more appropriately taken by that body.

Third, there is nothing to prevent the Chamber itself declaring a case manifestly ill-founded. This can arise, for instance, where there is no appearance of a violation of the Convention, but the application nonetheless raises a point of law that is of general interest or importance. In such cases, there is some value in producing an inadmissibility decision, if only so that it is clear that the Court has endorsed the approach taken by the domestic courts (see, for example, Mustafa Kemal Mustafa (Abu Hamza (no. 1) (on adverse publicity and the right to a fair trial); Judge (on the absence of reasons for a jury’s verdict; and Friend and others (on fox hunting).

And, of course, beyond their jurisprudential value, such inadmissibility decisions (and the other 950 applications declared inadmissible every year) count as additional reminders of Tickell’s conclusion that the Court may not be as “obsessively interventionist” as media reporting of its work occasionally suggests.

Paul Harvey is a UK lawyer in the Registry of the European Court of Human Rights. The views expressed are personal.

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