Reform of the European Court of Human Rights: response to a modest proposal
4 April 2011
In an interesting post, Aidan O’Neill QC concludes that the European Court of Human Rights is “in danger of imminent collapse” due to its backlog of 140,000 applications with around 1,600 arriving every month; a conclusion compounded by inherent delays. He suggests that the way to draw back Strasbourg from the brink of judicial Armageddon is to abolish the individual right to petition Strasbourg and to introduce a referral system whereby national courts request Strasbourg’s opinion on human rights issues, akin to the Court of Justice of the European Union (CJEU).
by Graeme Hall
I must disagree. Strasbourg’s jurisdiction spreads across 47 contracting States, ranging from diverse populations such as Liechtenstein and Malta to Russia and Turkey. In turn, the Court is the guardian of the European Convention on Human Rights for over 800,000,000 individuals. The 61,300 valid applications which Strasbourg received in 2010 represent applications from 0.0077 per cent of the population to which the Convention applies. Given the importance of the Convention to the protection of fundamental human rights and freedoms, I find it surprising that Strasbourg does not receive more applications.
In 2010, Strasbourg decided just shy of 42,000 applications, of which 2,607 applications resulted in judgments. In over 85% of these delivered judgments, at least one violation of the Convention was found. Strasbourg’s 47 judges, supported by the Registry composed of 270 lawyers, managed to achieve this with a budget of €59million (£52million).
By comparison, the UK Supreme Court, whose jurisdiction is far smaller, with 12 Justices, received just 112 applications in the six months between October 2009 and March 2010, heard 67 cases in the legal year 2009-10, and has a budget of £12.8million for the legal year 2010-11. Incidentally, the Strasbourg statistics are readily accessible and comprehensive (find the Facts and Figures here), while the information regarding the Supreme Court is, frankly, neither.
Direct comparison between the two courts is probably not ideal, but it does show that with only four times as many judges, Strasbourg decides over six hundred times as many applications, whilst covering a jurisdiction over ten times the size of the UK, and for a budget which is only four times larger. Its budget is also far lower than that of the CJEU, which was €315million in 2009. Is this inefficiency? Is this a system that needs “fixed”? Is this really a Court facing “meltdown”?
Granted, there are delays in the system. However, Strasbourg continues to combat delay. Recent examples include the addition of “no significant disadvantage” to the admissibility criteria, the pilot-judgment procedure for systemic and widespread Convention violations, and the requirement that only a single-judge formation need rule an application inadmissible instead of a three-strong panel. An outline of the Court’s procedure for dealing with an application can be found here and a very useful Q&A can be found here.
To summarise, when an application is lodged, it is forwarded to the Section which corresponds to the nationality of the applicant. It goes through an initial sift to see whether it discloses a violation. The Court’s Priority Policy states that the application will be ranked. If there appears to be no violation, it will ultimately go to the bottom of the pile to await an inadmissibility ruling. Those which do disclose a violation are ranked in order of seriousness and dealt with accordingly: the most urgent first.
As a result, those whose applications are inadmissible will have to wait but, more importantly, cases which disclose violations are dealt with either immediately or according to their urgency. The “backlog” which critics talk about is ultimately a backlog of inadmissible cases. Strasbourg is still doing its job, that is first and foremost dealing with cases which disclose human rights violations. Regarding admissible decisions, Strasbourg does try and deal with them within a reasonable time. The delays which O’Neill describes can be generally attributed to the contracting States or the applicants requesting time extensions.
Crucially, Strasbourg is always trying to educate potential applicants about whether an application will be admissible. The Court offers Factsheets on a variety of topics and it produces Case-law information notes and Press Summaries covering all the judgments of the Court. There are also handbooks and, most recently, Strasbourg has published A Practical Guide on Admissibility Criteria.
Moreover, all of the Court’s judgments, admissibility decisions and communications are available for free on the internet for any citizen in the world to access. We can’t say the same about our domestic courts. The irony is that whilst critics of Strasbourg currently demand urgent reform, Strasbourg realised this for itself a long time ago, and continues to modernise and institute reforms to increase efficiency and open access to the public. There is little evidence of such a proactive approach in the UK court system.
O’Neill’s proposals: Abolition of Individual Petition & National Court References
The protection of human rights should not merely be a question of legal procedure; it should be one of moral principle, too. In the UK there are instances where appeals are lost, permission to appeal is not given, and even cases where individuals are unable to secure legal funding to pursue their human rights claims. Strasbourg still finds violations in such cases. Merely because domestic courts and the Legal Services Commission do not find merit in a case, does not mean that human rights abuses have not occurred. Domestic courts can get it wrong, and it is therefore vital that individuals are able to avail themselves of Strasbourg when the domestic legal processes have let them down.
Take another example. Strasbourg consistently finds States such as Russia and Turkey in violation of the right to life and the prohibition against torture and inhuman and degrading treatment. (For examples of such horrific cases, I recommend the European Human Rights Advocacy Centre’s website). Often, Strasbourg has already ruled that the laws on which the States rely violate the Convention. Domestic courts either throw out these claims or allow the process to be drawn out interminably (probably due to corruption), meaning that without the right to individual petition, citizens would never achieve a modicum of justice, and their human rights would never be vindicated. It is at best arbitrary and at worst inhumane to conclude that merely (and thankfully) because such human rights abuses do not occur in the UK, we abolish other European citizens’ chance to seek protection and compensation.
And, strengthening the role of another body, such as the European Commissioner for Human Rights, will add another layer of bureaucracy, more eurocrats, another set of rules regarding procedure and decisions, more appeals systems, and ultimately further delay.
Regarding references by national courts, it must be remembered that some of Strasbourg’s most seminal decisions against the UK reversed the findings of our domestic courts. Think of Osman v UK regarding the absolute immunity of the police; HL v UK where the doctrine of necessity was found totally lacking to ensure that a compliant incapacitated individual’s right to liberty was not violated; Pretty v UK which decided that the right to a private life included the way in which a person chooses to die; S and Marper v UK regarding the retention of personal data constituting an interference with individuals’ privacy; Hirst v UK (No. 2) which found that the blanket ban on prisoner voting was a violation of their human rights. In all of these cases, the domestic courts found no violations. Would they have sent a reference to Strasbourg? I doubt it.
I also find it difficult to understand the suggestion that the Government should be allowed to ask domestic courts to make a reference to Strasbourg. We are dealing with human rights: rights of the individual, not rights of the Government. If Governments want advice about human rights, that’s what lawyers are for. The Courts are not there to advise Governments.
Those who have recently started demanding reform of Strasbourg (and there are many) are behind the times – Strasbourg has been reforming itself. I hope that Strasbourg, the Committee of Ministers and the Council of Europe stick to their guns; continue to modernise, continue to uphold universal human rights for all, and have the courage of their convictions to remain persuaded by the authority of their own reasoning rather than simply yielding to others. Keep going Strasbourg, hopefully your critics will catch up with you soon.
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Prior to the Strangeways Prison riot on 1 April 1990, inmates were only allowed to petition Her Majesty about grievances. It kept complaints internalised because they would be answered, if they did not end up in the waste paper basket, by an anonymous civil servant working in the Home Office. The answer would invariably be “No”. In the Woolf Report it concluded that there was a lack of justice in prisons, and a new complaints system was introduced which permitted a final decision to be susceptible to judicial review.
Hirst v UK (No2) started its life in the High Court where it was rejected as being unwinnable in this country. Therefore, I am in favour of individual petition to Strasbourg. When it comes to human rights violation, a country should not be a judge in its own cause. Removing individual petition would be the equivalent of sweeping it under the carpet.
A reform I would like to see in relation to the ECtHR is for the Court’s decisions to have direct effect into domestic law. I fail to see the point of handing a case over to the politicians in the Committee of Ministers just for them to play ping pong in the long grass with the UK for over 5 years. As a result prisoners have now decided to test the CJEU.
A problem with the Committee of Ministers is that too many representatives are from countries which are guilty of human rights violations and have failed to implement the Court’s decisions themselves. The current Chairmanship of the Committee of Ministers is Turkey and yet the country has the second worst record of human rights violations next to Russia. It calls into question both legal and moral legitimacy. Unless the UK cleans its act up by Autumn I think the UK’s Chairmanship of the Committee of Ministers should be suspended. If a Member State has clearly violated Article 3 of the Treaty of London then under the Interlaken process there should be an appropriate sanction.
Thomas Hammarberg has recently sent a message to the UK on prisoners votes. http://commissioner.cws.coe.int/tiki-view_blog_post.php?postId=130 I would be very surprised if the Grand Chamber decided to allow the UK to reargue the points lost in Hirst v UK (No2) in Greens and MT v UK. Given that the UK is in breach of Article 3 of the Treaty of London, the Committee of Ministers should invoke Article 8 and suspend or expel the UK from the Council of Europe.
As a gay man I also find Aidan O’Neill’s suggestion that the right of individual petition be withdrawn highly problematic. It was precisely a series of cases brought by individuals against the UK and other states over many years that led to decriminalisation of same-sex relations across Europe, and in the case of the UK, elimination of other discrimination in the criminal law, elimination of discrimination in the armed forces, recognition of the right of transgender persons to legal recognition of their preferred gender etc etc.
The idea that it should be left to national courts to refer cases to Strasbourg is, for much of Eastern Europe, completely unreal when it comes to sexual orientation and gender identity, even for such basic rights as freedom of expression and assembly. Decisions of the Court in these areas are an important stimulus to the development of a human rights culture in these countries, as has been shown by the recent freedom of assembly cases against Poland and Russia.
Under the Interlaken process a number of proposals have been made for speeding up the Strasbourg court’s decision making process. They should be given a chance.
But there are wider problems than the backlog — particularly around failure by some member states to implement judgments of the Court. If drastic action is needed, rather than withdrawing the right of individual petition, it should focus on expelling those states that do not comply with their Council Europe obligations — as recommended recently to the Committee of Ministers by the Parliamentary Assembly:
“ensure, in cases of persistent and flagrant disregard of the Court’s case law, that recourse be made to Article 8 of the Council of Europe’s Statute of 1949 (suspension/withdrawal from the Organisation).”
This could be a gradual process, starting with suspension of the national delegation’s participation in the Parliamentary Assembly.
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