European Court of Human Rights: is the admissions system transparent enough? – Ben Jones
27 January 2012
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.
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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.
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.
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.
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?.
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.
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