Two recent posts on this blog have brought deserved attention to the question of the European Court’s handling of admissibility decisions. In the course of criticising the substantial misrepresentation of the statistics for UK petitions to the European Court, Andrew Tickell’s piece highlighted the significant contribution of “highly discretionary concepts” in the filtering of the Court’s caseload.
Alongside clearer procedural hurdles such as the six month time bar and exhaustion of domestic remedies, the “manifestly ill-founded” criterion may be a clear and meaningful legal term but certainly isn’t manifest exactly what obstacle it sets.
On the basis that 60% of inadmissibility decisions were attributed to this heading in 2010 (the first year in which any statistics have been released) and reinforced by anecdotal reports that practitioners have found arguable cases “miffed”, Tickell suspects that the ill-founded test poses a higher hurdle than might be obvious at first sight.
That this is the case is further supported in Paul Harvey’s response, which notes that even cases attributed to the other inadmissibility categories fail the ‘manifest’ criterion as well, suggesting that a significant majority of applications fall foul of the concept. Harvey’s article helpfully unpacks reasons why most applications are ditched but seems more oriented towards promising that no bad case will survive the Court than answering Tickell’s concern that good, or marginal cases, are potentially being deprived of a full judicial process.
In defence of the use of the ‘manifest’ criterion, Harvey states that while broadly applied, it is no more discretionary than domestic criteria such as “no reasonable prospect of success” and that “in the hands of an experienced Single Judge, assisted by Non-Judicial Rapporteurs, should give no cause for concern”.
This demands a lot of faith in the robustness and rigour of the Court’s legal and administrative processes, its Judges and its ‘non-judicial rapporteurs. Now that questions are being asked I do not believe he can afford to presume such confidence in the public. In the absence of greater transparency and more revealing statistics it is hard to imagine those who harbour concerns will be reassured.
In the absence of further data I must also appeal to anecdote. During a research visit to the Council of Europe this past Summer I was surprised to discover that input into admissibility decisions was not the sole preserve of qualified lawyers, trained human rights specialists, nor even the Court’s full time staff. Stagiaires (unremunerated interns, principally law students) were apparently a regular part of the admissibility process, drafting arguments for rejection of applications and, provisionally, applying the ‘manifestly ill-founded’ label to cases. This was ostensibly standard practice, as was allocating to stagiaires petitions that originated from their own home state.
For temporary workers, however able, to be able to perform this daunting task to the very high standards demanded in the context must necessitate a clear appreciation of the meaning and application of this “manifestly ill-founded” criteria. However there was little time for the stagiaires I met to develop any such subtle understanding, with their being put to consideration of applications on only their second day of work. What was clear to those I informally spoke with was that a high rejection rate was, if not expected, then, at the least, understood to be par for the course and that for an application to be found admissible was a relative rarity.
Stagiaires are supervised and the full-time legal officers are no doubt attuned to identifying mistakes. However, that even amongst those who are involved in the decision making process, there may be a less than complete understanding of the bounds of the ‘manifest’ concept makes unwavering faith in the system hard to maintain. Even if one section of the public can be confident that no ill-founded claims will come to fruition, there is nothing in Harvey’s argument to reassure those that fear the Court’s filtration system is not fine grained enough to ensure no case of merit is missed.
Under such circumstances I think the Court and its registry need to do something more to secure public confidence in the effectiveness of the process than simply appeal for our trust. A black box mechanism for rejecting applications without explanation does not demonstrate a problem but, once questions have been raised the integrity of one’s processes, it does little to help defend them.
I do not doubt that the great majority of these “manifestly ill-founded: applications are indeed unmeritorious but if the Court is to maintain the confidence of the public then the onus is on it to demonstrate that this is the case.
As the Court’s caseload continues to grow and as the Conservative Government calls for even further filtration of applications, steps must be taken to ensure that expeditious handling of applications leads neither to the cutting of corners nor risking the perception that corners are being cut. Providing greater transparency in the admissibility decision-making process is an important element of avoiding both outcomes.
If justice is to be seen to be done then some more sophisticated system of monitoring must be seriously and urgently considered. Harvey states the “vast majority” of these manifestly ill-founded cases fall into four, clear, categories. If this is the case then is it unreasonable to ask that during the rejection process they be marked and reported as such (at least in aggregate)?
If the “manifestly ill-founded” concept is clear and decisions are being made not discretionarily but through its careful application to the facts of individual petitions then the extra step of registering, or simply tallying, those conclusions cannot be that onerous a task. In releasing some limited data for the first time it has taken a step in the right direction but they will need to add further granularity to these statistics if they are to show that the Court takes the task of demonstrating its integrity seriously.
Ben Jones is a doctoral researcher at the University of Oxford Faculty of Law.
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