European Court of Human Rights: is the admissions system transparent enough? – Ben Jones

27 January 2012 by

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.

Sign up to free human rights update s by email, Facebook, Twitter or RSS

Related posts:

5 comments


  1. M Cook says:

    Someone told me they had received a ‘standard’ letter rejecting their case. You might consider some research into the wording of the letters sent out – bet they’re almost identical.

  2. Donna Gomien says:

    Another important issue related to the lack of transparency of admissibility decisions is the failure to include even the briefest of reasoning in those made public.

    Those of us who have been engaged in training domestic practitioners around Europe about admissibility thresholds have been thwarted in those efforts by the aforementioned failure. I may know why a given application will be rejected at the admissibility stage, but it is difficult to convince enthusiastic/aggrieved persons of that inevitable outcome when the publicly available decisions only use the formulaic language, without saying how the facts of a case fit the formula.

    I have been told “it’s too much work” and “the party gets a more detailed response”, but I would note that if the Court feels overburdened with (doomed) applications, they might want to take a more proactive approach to alleviating that burden. A few brief, but well-reasoned admissibility decisions, available and accessible to the public in the potential respondent country, may well stem the flood of applications that will go nowhere.

    Of course, publicizing these decisions may also open the Court to more criticism as to their admissibility decisions — particularly those declared to be “manifestly ill-founded”. But the trade-off of having far fewer applications to process may be worth it.

  3. Lofthouse says:

    The figures, for number crunchers……
    whereas in 1999 8,400 applications were allocated to a judge committee or
    chamber, this figure rose to 27,200 in 2003, when around 65,000 applications were already pending. In 2009 57,200 applications were allocated to a judicial formation and the backlog reached 119,300 applications.

    According to the Court itself:
    “The Court’s excessive workload is due to two factors in particular:
    – The processing of a great number of applications that are declared
    inadmissible (more than 90% on which a decision is made)
    – applications related to structural issues in which the Court has already
    delivered judgments finding a violation of the Convention and where a well
    established case law exists. These applications, called repetitive cases,
    account for around 60% of the judgments of the Court every year.”

    ..so (using DWP statisticians to work this out), I guess that 60+90 = 150% of cases can now be rejected, and the staff can all go home early.

  4. Lofthouse says:

    Ben,
    The same has happened to the Parliamentary Health Service Ombusdman’s Office in the UK – law students (many 2nd year I might add) are used to screen out and reject cases. Their ‘Screeners’ are ‘supervised’ too, but this involves allowing them to ask for advice on complex questions – supervision does not involve any form of quality control checking at all. These students are ‘temp’ staff, are in and out of the door in a few months, and hey, who cares? .

    According to the European Court’s promotional material…. (http://www.echr.coe.int/NR/rdonlyres/57211BCC-C88A-43C6-B540-AF0642E81D2C/0/CPProtocole14EN.pdf) – Protocol 14 not only increased the Court´s filtering capacity to deal with ‘clearly inadmissible
    applications’, but also introduced a new admissibility criterion concerning cases in which the applicant has not suffered a significant disadvantage, as well as measures for dealing more efficiently with repetitive cases

    In law, is there ever a ‘repetetive case’? And how do you assess ‘significant disadvantage’?
    In my experience, there’s an ‘auto-reject’ button for anything submitted to the European Courts by ‘litigants in – person’ , but its impossible to prove, and even if you could, what on earth are you going to do about it? Take them to the UN?.

  5. The problem with Strasbourg is it is not transparent. Decisions are made in a secret report provided by the rapporteur which no one is allowed to see and which the single judge relies. On top of this one cannot challenge any errors or misundertsandings but then it is no different to the Uk Appeal court system of Bench memorandum in civil and family cases where an advisory opinion is provided which Strasbourg case law states must be disclosed if requested which the Uk Court of Appeal refuses to do and which is no different to either regime relying on secret and unaccountable opinions and facts in order to dismiss cases.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation deficit DEFRA Democracy village Dennis Gill dentist's registration fees deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disabled claimants disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 justification just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: