In recent years, a constant feature of debate about the future of the European Court of Human Rights has been the backlog of applications that threatens to engulf it. At its height, in September 2011, this backlog reached the dizzying figure of more than 160,000.
The accumulation of applications has been the basis of the argument both by politicians (such as David Cameron) and figures formerly associated with the Court (such as Luzius Wildhaber) that the Strasbourg system should be fundamentally reformed so that it would deliver far fewer judgments relating only to large-scale violations, structural problems, or important questions of the interpretation and application of the European Convention on Human Rights.
Such reform would mean drastically curtailing the right of individual petition, which for decades has been the cornerstone of the Convention system (and of other regional human rights mechanisms that have emulated the ECHR model). Yet if the backlog was to be significantly reduced – or eliminated – the foundation of the argument that the Court requires root-and-ranch reform to avoid collapse would, by the same token, disappear. Figures presented last week by the Registrar of the Court, Erik Fribergh, suggest that this scenario is now not only possible, but likely.
Aficionados of the Court will appreciate the blizzard of statistics that the Registrar presented in his speech to an inter-governmental meeting on reform of the Court.
The first figure relates to the remarkable shrinking of the Court’s docket in the past three years. On 1 July 2014, the Court had 84,515 pending applications – half as many as in 2011. How did the Court achieve this? The answer lies in the changes introduced since 2010 under Protocol 14 to increase the efficiency of judicial decision-making; and (more contentiously) the introduction of a shorter deadline, tighter admissibility criteria and stricter conditions for applicants.
So what about the 84,515 applications on the Court’s docket as of 1 July 2014? This is where the statistics outlined by the Registrar paint a revealing and important picture.
The figures are best explained with reference to the different priority categories established by the Court. Categories 1, 2 and 3 are urgent or important cases, to which the Court accords greatest priority. There were 8,501 of these on 1 July 2014. The Court is on course to deal with these cases within the targets set out by the Brighton Declaration (para 20(h)), according to which the Court should deal with all incoming applications within one year of registration, either by rejecting it or communicating it to the Government, with a further target of terminating the proceedings within another two years. Any applications not dealt with in line with these criteria thus become known as the ‘Brighton backlog’ (p. 8) a phrase we may start to hear more often.
The Registrar also expressed confidence in the Court’s ability to process within the Brighton targets the annual influx of 60-70,000 fresh applications, without the need for additional resources.
Dealing with the backlog
And what of the remaining applications in the lower priority categories (4 to 7)? These are the cases that make up the bulk of the so-called Brighton backlog. Erik Fribergh outlined a plan to process these cases substantially within two years and completely within around eight years, subject to the provision of a temporary one-off budget.
The easiest to dispose of are so-called category 6 and 7 cases; that is, applications that raise a problem of admissibility or are manifestly inadmissible and that are dealt with by single judges. As of 1 July, there were 17,899 such cases and this element of the backlog is projected to be eliminated by the end of 2015.
Next are the category 5 or ‘repetitive cases’; that is applications raising issues already dealt with in a leading or ‘pilot’ judgment (which the Court uses to identify and resolve structural violations of the Convention). On 1 July, there were 39,721 such applications. More than half of these emanate from just two states: Italy and Ukraine (and not forgetting some 1,000 pending applications currently on the Court’s docket stemming from the UK’s protracted failure to implement judgments on prisoner voting rights). The Court is using streamlined methods, both judicial and technological, to deal with repetitive cases and these are projected to be removed from its docket by around the end of 2016.
The last batch of cases – category 4 – is the most stubborn element of the backlog. These are the 18,404 cases that are well-founded but neither priority nor repetitive. Since each of these must be dealt with individually, they are especially resource-intensive. The Registrar presented the case for a temporary extraordinary budget of 30 million euros over eight years starting in 2015 (a total of £23.4 million, or less than £3 million per year) to process these cases and thereby eliminate the backlog.
To recap, the Registrar made a convincing case that the Court will reduce the ‘Brighton backlog’ to fewer than 20,000 cases by the end of 2016, and steadily dispose of the remainder within the following eight years (subject to a one-off injection of funds from member states), whilst at the same time dealing expeditiously with new applications in line with the Brighton criteria.
This situation is an extraordinary turnaround from the vertiginous backlog of three years ago, and an achievement for which the Court deserves great credit. More importantly, it creates a new context for discussions about the future of the Convention system – one in which the spotlight falls firmly on member states and the still far from effective inter-governmental mechanism for supervising the implementation of judgments (note that more than 11,000 unimplemented judgments were pending before the Committee of Ministers at the end of 2013 (pp. 36-37).
In the words of the Registrar (p. 9), the Court should be allowed to continue with its steady progress ‘without the distraction of constant and sometimes confused calls for further reform’. His remarks are likely to fall on deaf ears among those with a political determination to clip the wings of the Court, not least those presently gathered in Birmingham.
Yet the analysis he presents creates a threefold imperative on member states. The first is to support the Court financially to ensure that justice is finally done for the applicants whose cases are stuck in the ‘hard core’ element of the backlog. The second is to desist from making politicised or non-evidence-based criticisms of the Court. The third, in keeping with the principle of subsidiarity, is to implement Convention standards and judgments of the Court (and exert much more effective peer pressure in this direction) in order to ensure that the Strasbourg system never again has to labour under such a weighty backlog.
Dr Alice Donald is a Senior Lecturer in the School of Law and Politics at Middlesex University
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