Brought to you by Andrew Tickell
Marie-Bénédicte Dembour calls them ‘forgotten cases’. As Adam Wagner demonstrated in a blog post of last week, Eurosceptic newspapers have a particular interest in overlooking the European Court of Human Right’s decisions of inadmissibility, seeking to buttress claims that the Court is wildly interventionist, imposing alien “European” logics on Britain with gleeful abandon.
Both the Telegraph and Daily Mail covered the findings of a report commissioned by backbench Tory MPs critical of the Court’s jurisdiction, both simply replicating its astonishingly misleading content. The papers contended that the UK was defeated in three in four cases brought against it, with violations of the Convention being found in 75% of human right petitions to Strasbourg.
Such a finding could be concerning and interesting in any number of ways – if it was true. However, on their own numbers, presented as scandalous and revelatory but in fact culled from the Court’s own freely, publicly available 2010 statistics, both papers report that 271 judgments against the UK produced at least one finding that the Convention had been violated, of just 443 British cases resolved by a judgment of the Court between 1959 and 2010. Despite their verbatim reporting of these figures, if either paper had resorted to a calculator, they would have discerned that 271/443 is only 61% of judgments, and it’s an untenable 14% stretch to expand that to the 75% noisily and irresponsibly claimed in their headlines.
However, even this 61% claim is inaccurate, as it conveniently ignores the 97% of complaints lodged against the UK which the Court decides are inadmissible. Rather than losing 75% of European cases, the UK has been defeated in less than 2%. Of course, that doesn’t establish that the Court’s decisions in that less than 2% were faultless, but incontrovertibly demonstrates that the construct of an obsessively interventionist Strasbourg is a fantasy.
In another respect, the papers’ reports suggest an interesting, more generally challenging point for those who have followed the domestic and European Court reform discussions. According to Court figures, between 1959 and 2010, 11,438 judgments found that States Parties violated the Convention. Of all cases decided by a judgment of the Court during this period, including findings of no violation, friendly settlements and so on, 83.5% produce a judgment which condemned an infraction of the Convention.
In the fevered Daily Mail version, this fact suggests a nefarious and hyperactive Court, up to mischief and rejoicing in ‘overruling’ national authorities, better to promote the interests of sex offenders and the homicidal. (You might well think it ironic in this context that the UK’s rate of defeat is some 22.5% lower than the average across all member states between 1959 and 2010).
Isn’t another reading possible? Professor Steven Greer has argued from the applicant’s point of view, the admissibility stage is crucial. These statistics strongly support that thesis, and pose serious questions about how admissibility decision-making has understood in legal scholarship, and Court reform debates. Is this 83.5% finding simply incidental, accidental, inconsequential? Alternatively, might it not suggest that quite apart from banal, administrative, bureaucratic “filtering” – routine chucking out cases sent by applicants many years after a final domestic disposal, or without any domestic proceedings having been undertaken – the Court is already making extensive use of highly discretionary concepts such as “manifestly ill-founded” to pre-judge the interest of its caseload, and is already selecting cases which it regards as “serious” or “important”?
Hitherto, save for anecdote and uncollated professional impressions, the Court has never provided broken down statistics on the grounds for applications being declared inadmissible. All that changed at the end of last year, when the Court appended this data to its new online admissibility checklist.
I read with interest some observations after Adam’s post, suggesting that the “manifestly ill founded” inadmissibility criterion is a low-hanging legal hurdle, connoting “bare arguability”. Having talked to practitioners, dismayed to discover decent cased “miffed” by the Court years after submission, this is not a convincing impression. The Court’s own Practical Guide to Admissibility confirms the expansive interpretation given to the criterion, not limited to elementarily eccentric or unarguable cases. Characterising it as a ground of “inadmissibility based on the merits”, the Guide stresses that
the use of the term “manifestly” may cause confusion: if taken literally, it might be understood to mean an application will only be declared inadmissible on this ground if it is immediately obvious to the average reader that it is far-fetched and lacks foundation.
Not so for the Court (and critically, its Registry), who have employed the ground much more expansively and creatively to shape and manage their caseload. The data presented in the Court’s chart is somewhat problematic, as it isn’t exclusively based on grounds of inadmissibility set out in the Convention, but “principal reasons for the rejection of applications”. We know, for instance, that Protocol 14 came into force in June 2010, including the new admissibility criterion of “significant disadvantage”. In the Court’s diagram, which purports to give a comprehensive account of primary reasons for inadmissibility, it isn’t clear how cases rejected on this basis would be classified.
Moreover, we should be wary of treating ‘primary reasons’ given for decisions of inadmissibility as a comprehensive account of the Court’s caseload. As I have argued elsewhere, application of the “six month rule” and exhaustion of domestic remedies is far from being a matter of counting your fingers and adding one, and registry officials may find it more expeditious and convenient to label a file “manifestly ill founded”, and forward the draft note to a judge, rather than engage in the sometimes knotty analysis of whether a given remedy resorted to was “effective”, or whether an applicant submitted their case in-time or out of it.
Both newspapers may have been way off-piste in their reports, but by emphasising the extent to which the merits appear to be pre-judged by admissibility decision-making, the papers pose a real challenge to friends of the Court, who are nevertheless keen to give ‘filtering’ authority to Registry bureaucrats, or who uncritically bandy about ideas of dumping ‘frivolous’ applications, as if we all knew and agreed what that meant. The implications of how the Court and its bureaucracy approach admissibility decision-making are forgotten by more than just the Mail and Telegraph, and should not be.