Radical but risky changes afoot at the European Court of Human Rights – Andrew Tickell

9 July 2013 by Andrew Tickell

Brought to you by Andrew Tickell

Radical changes are afoot in Strasbourg. Protocol No. 15, whose outlines were agreed at the Brighton Conference of 2012, is primed for ratification, while at the start of 2014, new Rules of Court will come into effect.  Both have the potential to have a wide-ranging impact on applicants.  Protocol 15 rewrites the Convention’s preamble, emphasising the Court’s “subsidiary” role in the protection of human rights.

It also modifies two of the admissibility criteria for petitions, pairing back the safeguard clauses initially erected around Protocol 14’s new criteria of “no significant disadvantage” and trimming the time available for applicants to lodge their cases from six months to four.

As I have written elsewhere, these changes are unlikely to trouble the small number of wealthy litigants whose cases have already been aired in the highest domestic courts before finding their way onto the European Court’s docket. By contrast, the changes to time-limits, compounded by the Court’s new Rules, risk having a disproportionate effect on the poorest and most vulnerable applicants, with the least access to legal advice, subject to the worst outrages at the hands of their states.

In 2011, without issuing any public statement on the enterprise, the Court’s Registry embarked on the Blowfeldian-sounding “Rule 47 Project”.  A “pilot” filtering scheme, the Registry began to hold applications to far more stringent, formalistic criteria.  One of the few available insights into the Project is afforded in evidence from a Registry official to a Council of Europe Committee.  Mr Darcy told the Committee that it:

“… entailed a stricter approach by the Registry t o the formal requirements for submitting an application, as set out in detail in Rule 47 of the Rules of Court. Failure to provide all of the required information would lead to the rejection of the application by the Registry. The applicant would be informed by letter that their application had not been accepted for judicial consideration. This notification was final. The applicant could not submit a new application form, even within the six-month period.”

Innocuous… no, wait

The critical new provision in the Rules, the amended Rule 47, is the fruit of this Project. Outlining the contents of an individual application to the Court, on a first reading, Rule 47’s requirements seem innocuous enough. Applicants are required to stump up pertinent information, concisely and legibly, concerning the nature of their case, and sundry personal details, from their age to their address and occupation.

The sting? The new Rule 47(6)(a).

“The date of introduction for the purposes of Article 35(1) of the Convention shall be the date on which an application form satisfying the requirements of the rule is sent to the Court”.

From the point of view of the lay applicant, untutored in Strasbourg’s procedures, its often impenetrable admissibility jurisprudence and opaque decision-making processes, this banal, administrative-sounding change is of the most profound significance.

Historically, the Court has accepted that the six-month clock stops whenever the applicant sets out, even in summary fashion, the nature of their compliant.  This often takes the form of a letter, incomplete in content and often not terrifically legalistic in form.  The Registry has then responded with a copy of the official application form, requiring the applicant to return their completed materials to the Court within a given time frame, on pain of the date on which their application was lodged being “reconsidered” by the Court, potentially killing the case as out of time.

From the beginning of 2014, however, these commonplace letters won’t stop the clock at all, and petitions will only be accepted as lodged within the Convention time-frame where all of the information is provided.

For well-heeled complainers, expertly advised, this shouldn’t be an oppressive hurdle to clear.  By contrast, for applicants without lawyers, whose cases have exhausted domestic remedies but have not been aired in domestic courts, this is a much taller order.

Piffling detail

It also isn’t clear what fate might await the application which a Registry official deems not to be “concise”, or where some piffling detail is inadvertently or deliberately omitted from the applicant’s materials.  During the Court’s “Rule 47 project” applications which didn’t meet these standards were simply junked. No judge got a look at them, and a Registry letter was despatched, informing the luckless applicant that their case wouldn’t be examined by the Court.

There was, best one can understand from the paltry information the Court put in the public domain about the project, no opportunity for folk to rectify any oversights within the procedure.  Miss out some solicited fact – your occupation say – and the petition joined the thousands of other cases which the Court bins annually.

That would be a bad, crude, bureaucratic way to dispense justice.

Constricting the time-frames available to petitioners, and subjecting their applications to sniffish bureaucratic scrutiny before seriously considering their content, might furnish useful administrative reasons to reject more and more applications at the threshold.  Neither scheme, however, can help the Court to focus its resources on critical cases, alleging the most serious violations of human rights, where states cannot or will not afford their citizens an effective remedy.

The Court’s case-law is clear. Where no effective national remedy is available, the six month – soon to be four month – time-limit starts to run from the date of the alleged violation of the Convention.  After Protocol 15 and the new Rules come into force, the Chechen civilian, caught up in military conflict, who finds that Russian authorities will not effectively investigate the deaths of her relatives, or the illiterate Kurdish family whose father has disappeared, snatched persons unknown and unpunished, will have just four months to state their whole case to Strasbourg.

This may be particularly difficult, as it is often challenging to identify precisely when a superficially effective national remedy – investigation and prosecution, say, in Article 2 cases – becomes practically ineffective.

The lack of formalism during the initial phases of European human rights proceedings has long been one of the tribunal’s most attractive and generous features.  You do not require legal assistance to lodge an application with Strasbourg, but the sheer scale of petitions lodged without legal advice is generally unrecognised.  Unpublished official figures show that around 69% of applicants to the Court have no legal help in the formulation of their petitions.

Most of these applications are rejected as inadmissible, but many are not.  The same figures show, for example, that just 8% of Polish applications flagged as admissible and raising new and important human rights issues benefited from legal advice in their formulation.  69% of prima facie admissible and non-repetitive Ukrainian applications were made without professional advice.

Overwhelmed

We have to face facts. The European Court is overwhelmed with applications.  The solutions to this situation, however, should not be to resort to formalism, to administrative tricks to dump applications on technicalities, however important the issues raised, however dreadful the violations of human rights they disclose.

In the UK, laywers are up in arms about the differential impact which changes to legal aid regimes are likely to have on our poor and disadvantaged fellow citizens.  The phenomenon of the litigant in person, struggling to navigate even well-founded claims through the often technical and difficult environment of a court, is increasingly on the public and research agenda.  In Europe, largely without criticism, similar “rationalising” projects are being undertaken.

The Lord Chancellor, Chris Grayling, is always keen to contrast the Strasbourg of today with the historical context from which the European Court of Human Rights sprung: Buchenwald, Dachau, Russian gulags, the arbitrary deprivation of life, liberty and property.  The Court cannot withdraw its jurisdiction, in the name of efficiency and formalism, from the very people it was founded to project.

Indirectly, subtly, these two reforms risk doing precisely that.

A longer version of this post by Andrew Tickell first appeared on the  the Firm and is reproduced here with permission and thanks.

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