Reform of Strasbourg Court: a modest proposal – Aidan O’Neill QC

28 March 2011 by

The coalition Government has appointed an independent Commission to investigate the case for a UK Bill of Rights.  This Commission has also been tasked with providing advice to the Government on the possible reform of the European Court of Human Rights – as part of on the ongoing Interlaken process – ahead of and following the UK’s coming Chairmanship of the Council of Europe.

One does not have to be human rights sceptic to accept that there is an unequivocal case for further reform of the Strasbourg Court because, unless something is done, the current system for human rights protection at a European level is in danger of imminent collapse.

The Court may be said to be a victim of its own success.  Between 1981 and 1997 the number of individual applications received each year by the Council of Europe institutions alleging human rights violation rose incrementally from 404 in 1981 to 4,750 in 1997.   Under the Convention system then in place the Strasbourg Court only adjudicated on cases which had been considered by, and then referred on to it from, the European Commission on Human Rights.     Thus in 1981 the Court ruled only in 7 cases; in 1997 it considered 119 cases.    In 1998 the system for human rights adjudication under the Convention was substantially reformed by the contracting States with the coming into force of Protocol 11.   This abolished the European Commission for Human Rights and transferred its functions to the Court.   It made each State’s acceptance of the right of individual petition to the Court compulsory.   With these reforms and expansion of the membership of the Council of Europe to former Soviet bloc states, the workload on the Court began to increase exponentially.

In 1999, the first full year of the Protocol 11 reforms, the European Court of Human Rights received 8,400 applications and produced 177 judgments on the merits of cases before it.   In the course of 2010 the Court received 61,300 new applications.   Some 90% of the applications to the Court are, on examination, found to be clearly inadmissible or ill-founded applications.   Still the Court managed in the course of 2010 to process over 41,000 applications and to produce 1,500 substantive judgments on the merits.    But by the end of 2010 the backlog of unprocessed application awaiting consideration by the court had reached approximately 140,000 applications, with the queue increasing in the course of 2010 by more than 1,600 applications per month.

The miracle of it all is that, in the main, the quality and standard of reasoning in the Strasbourg Court’s decisions has not suffered.  It continues to produce judgments (including dissents and concurrences) which repay detailed study and which persuade by the authority of their reasoning rather than simply demand assent by reason of their authority.    But things cannot go on this way.    Apart from anything else the pressure of the number of applications has meant long delays build up within the system, which is ironic in a Court which is often called upon to judge whether court procedures in the national courts have been conducted “within a reasonable time”.

How can the system be fixed ?   I would suggest that radical measures are needed.   I would propose that the right of individual petition to the Strasbourg Court, after all domestic remedies have been exhausted, be abolished.  In its place there should be introduced a system whereby national courts – at any level within their national hierarchy – may make preliminary references to the Strasbourg Court for it to advise on human rights issues arising in the course of these national proceedings.  This is a system which is modelled on the Article 267 TFEU preliminary reference procedure which exists in EU law.  The  comparison between the current workload of the Strasbourg based European Court of Human Rights and the Luxembourg based Court of Justice of the European Union is instructive.   In 2010 the Luxembourg based Court of Justice had just 631 new cases brought before it.   385 of these were preliminary reference from national courts of the (now 27) EU Member States, while the remainder were either direct actions brought by the Commission (or other Member States) or appeals from decisions of the General Court of the European Union.  The Court of Justice decided a total of 574 cases in the course of 2010 taking, on average, just over 16 months to determine those cases which had been referred to it by national courts in the course of proceedings before them to advise on a matter of EU law.

Even taking into account the fact that the jurisdiction of the Luxembourg Court extends only over the 27 Member States of the European Union whereas the jurisdiction of the Strasbourg Court extends to all 47 contracting States of the Council of Europe, replacing the right of individual appeal to Strasbourg with a system of preliminary references from national courts would seem to have the immediate advantage of taking some of the pressure off Strasbourg.     Going by EU precedent, the numbers of cases which would come before the European Court of Human Rights on a preliminary reference procedure would be drastically reduced.   The Strasbourg Court would be relieved of the task of vetting and rejecting the 90% hopeless and baseless applications which currently come before it.     Only those cases which a national court thought had some merit would have to be considered by the Court.   Such a system would also have the effect of repatriating and integrating human rights into the procedures and cultures of the national courts as it is they would be taking the decision to refer a matter to Strasbourg, rather than as, at present, an appeal being taken there against the decisions of national courts.     In principle, too, a preliminary reference procedure would allow public authorities, including the Government, to ask a national court to refer the matter to Strasbourg, whereas under the present system the Governments have no right of appeal to Strasbourg.

It might be thought that such a system in fact involves the abandonment of the individual to the vagaries and injustices of their own countries’ national court systems, some of which may not yet have developed a sufficient culture of independence from the Executive to allow them to dare to make a Strasbourg reference in the course of proceedings before them.   The answer to this criticism is two-fold: one a human rights culture will only take root within any country if it is embedded within that country’s judicial system.    This may take time but a procedure for a preliminary reference may encourage and accelerate this process, particularly if it allows a lower court to make a reference to Strasbourg against decisions of courts above it in the hierarchy with which it disagrees.    Secondly, it is proposed that the possibility of one contracting State taking a case against another directly to Strasbourg (as Ireland did against the UK in the 1970s over the treatment of individuals in Northern Ireland who had been detained for interrogation by the British army) be retained.    But again following the parallels with EU law, there may be a case for strengthening the role of the existing European Commissioner for Human Rights to allow that office to bring individual cases directly before Strasbourg in the face of the national courts’ unwillingness or inability to remedy human rights abuses within their country.

The point is that doing nothing is not an option.  The Strasbourg system is nearing meltdown in its current form.   Something must be done if we are to hold on to the invaluable work that Court does, and retain its human rights legacy for the whole of Europe.

This post first appeared on the UK Supreme Court Blog and is reproduced with permission and thanks.

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  1. John Hirst says:

    Aren’t we forgetting something?

    The UK’s obligations in the Treaty of London 1949 (Statute of the Council of Europe).

    “Article 3

    Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I”.

    “Article 8

    Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine”.

    Hirst v UK (No2) is a case which highlights that the UK has failed to honour its obligations to uphold the Convention and abide by the Court decisions.

    Enforcement is weak. Because the Committee of Ministers has failed to supervise execution of the Court’s judgment there are now 3,500 more convicted prisoners cases before the Court.

    I do not agree with removing the right of individual petition to Strasbourg. Clearly the Judiciary has displayed the same systemic failure displayed by Parliament and the Executive. The subsidiarity principle has not been employed by the State.

    The Court decisions should have direct effect on domestic law the same as the CJEU. Rather than trust our courts to do the right thing, I would suggest that a satellite ECtHR be set up in each country.

    The UK at the February 2010 Interlaken Conference reaffirmed its obligations to honour the Convention and abide by the Court decisions. Why is the UK continuing to say one thing and do another and get away with it?

  2. Sjeng says:

    It seems rather absurd to entrust national authorities with the power to check compliance with the ECHR by national authorities. One shouldn’t let the fox guard our chickens. Especially not the ones that lay golden eggs.

    Instead one might consider providing the Court in Strasbourg with the appropriate funding. While the CJEU has an annual budget of 345 million in 2011, the ECtHR may spend 59 million this year.

    Could that maybe explain the differences ebtween the two courts?

  3. Tim says:

    I don’t like the suggestion because it doesn’t seem to take human rights very seriously at all. It seems to suggest that we should just wait for a human rights culture to slowly take root by accident in Member States. It does not seem to care too much for the principle of independence, either.

    My solution would be to have a new brother organisation in Strasbourg that operates like a triage nurse. It must be truly independent and it’s purpose could be to decide whether applications go forward to be heard by the main court, with a requirement to make properly reasoned decisions.

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