Procedural reforms in Strasbourg: From individual to systemic justice?

An article written by Anna Kohte*

On March 17, the European Court of Human Rights published its new case processing strategy.[1] The strategy is another attempt to address the backlog of cases the Court is facing: At the end of February 2021, the number of pending applications exceeded 65.000 potentially well-founded applications.[2]

In short, the new case processing strategy focuses on so-called ‘impact cases’ which are identified on the basis of flexible guiding criteria and examples, further discussed below. These cases, together with others which have already been identified as ‘priority cases’ under the previous framework, shall be processed and adjudicated more expeditiously. The decision to favour these so-called ‘impact cases’ is likely to give more importance to strategic litigation cases as well as favour well organized outreach and communication strategies by lawyers.

However, by favouring ‘impact’ and ‘priority’ cases over other currently pending cases, the new strategy again touches upon the more fundamental question what the Court’s objective is or ought to be, i.e. whether it is the Court’s primary objective and mandate to deliver individual justice or whether it is rather to provide general guidance on current matters of interest to the community of Convention States (‘systemic’ or ‘(quasi-)constitutional justice’) and whether these objectives can be reconciled.

Background

The Court has known a rising backlog of pending applications, reaching its peak in August 2011 with more than 160,000 pending applications.[3] In response to the increasing backlog of cases, the Interlaken reform process was launched in 2010. Since then, the backlog has been reduced to a total of 65,000 pending applications.[4]

It might be good to recall in this context that in contrast to the African and Inter-American Human Rights system, the European human rights system has abandoned the two-tier structure built on the Commission of Human Rights and the Court of Human Rights in 1998 with the adoption of Protocol No. 11. Unlike in the African and Inter-American systems, applicants are therefore capable of bringing their cases directly before the Human Rights Court in Strasbourg.

This, however, also means that the European human rights system effectively abandoned an important filter mechanism which it has since declined to re-establish as this ‘would be a step backwards and would carry a risk of more delays and costs’.[5] Instead, recent reforms have focused on the integration of filtering functions into the Court’s own processing system, by including, for example, a new admissibility criterion for individual applications,[6] the reduction of time within which an application must be lodged[7] and by relocating the Court’s resources to cases deemed ‘most important, serious and urgent’.[8] The latter reform includes a ‘priority policy’ redefining the order in which the Court deals with incoming individual applications. In view of the current workload of the Court, this policy ultimately also defines how long an applicant will have to wait for the final adjudication of her case.

The Court’s priority policy

With the adoption of the so-called priority policy in 2009, the Court abandoned the initial chronological order of dealing with applications and instead now takes into account the ‘importance and urgency of the issues raised’ by each case on the basis of criteria fixed by the Court.[9] In practice this means that the Court distinguishes seven categories, ranging from urgent (Category I) to manifestly inadmissible applications (Category VII).  While Category I-III are mainly dealt with by the Grand Chamber or Chambers of seven Judges, Category IV-VII are dealt with by Committees of three judges or only by a Single Judge (Category VII). [10]

In order to better understand the new case-processing strategy, the pre-existing categories, on which the new processing strategy builds upon, shall be briefly addressed:

The highest priority (Category I, ‘urgent cases’) is given to vulnerable applicants, in particular where there is a

‘risk to life or health of the applicant, the applicant is deprived of liberty as a direct consequence of the alleged violation of his or her Convention rights, other circumstances linked to the personal or family situation of the applicant, particularly where the well-being of a child is at issue’.[11]

This makes sense, as the Court is precluded from indicating interim measures[12] in certain cases of imminent risk of irreparable harm (e.g. if this would entail a decision on the merits). One such example where the Court does not currently indicate interim measures regards notably the release of a detainee pending the decision as to the fairness of the proceedings.[13] But the Court may also simultaneously indicate interim measures and prioritize the case, as done most recently in the case of Navalnyy v. Russia.[14]

Category II covers cases which raise ‘questions capable of having an impact on the effectiveness of the Convention system’ or ‘applications raising an important question of general interest’.[15]

As third Category appear cases which ‘raise as main complaints issues under Article 2, 3, 4 or 5 § 1 of the Convention (“core rights”)’, ‘which have given rise to direct threats to the physical integrity and dignity of human beings’.[16]

All potentially well-founded applications based on other Articles than Article 2, 3, 4 or 5 § 1  (currently 17,800 cases) are classified as ‘Category IV’ cases. To date, these cases take on average 5 to 6 years to process.[17]

It is this Category IV that the new case-processing strategy focuses on.

The new case processing strategy: Defining ‘impact cases’

The new case-processing strategy seeks to favour certain Category IV cases (newly qualified as ‘Category IV-High’), which shall be processed and adjudicated more expeditiously in the future.

According to the recent press release, around 650 cases have already been identified on the basis of the following flexible guiding criteria:

  1. the conclusion of the case might lead to a change or clarification of international or domestic legislation or practice;
  2. the case touches upon moral or social issues;
  3. the case deals with an emerging or otherwise significant human rights issue.

‘Impact cases’ therefore appear to have in common that they raise issues which transcend the interests of the individual applicant and are of interest for the Convention community as a whole. The guiding criteria remain, however, vague as, e.g. potentially every case might touch upon ‘moral or social issues’. As to the Court’s jurisprudence ‘human rights cases before the Court generally also have a moral dimension’ (emphasis added).[18] It also remains unclear in which case a human rights issue becomes ‘significant’ (one might be enticed to question whether ‘insignificant’ human rights issues exist at all). It is therefore regrettable that the list of examples, which might further concretise these criteria and add to their predictability, is not available to the public.[19] The lack of transparency as to the Court’s order of dealing with cases has been criticised before[20] and remains of concern. In addition, the new case-processing strategy also suggests that the importance of litigation communication will further increase as ‘the Court may take into account whether the case has had significant media coverage domestically and/or is politically sensitive’.[21] While media coverage can be an important indicator for pressing societal issues, it also raises the question as to how underlying power dynamics will be taken into account, especially but not limited to States where press freedom itself is considerably under attack. Furthermore, certain applicants might not have access, might not be familiar or not wish to engage with outreach activities, especially as it is not mandatory to be represented by a lawyer in order to lodge an application.

Ultimately, cases which are not defined as such ‘impact cases’ will be dealt with in Committees of three judges, with the application of well-established case-law of the Court[22] (‘broader-WECL’ and ‘WECL Fast-Track procedure’).[23]

From individual to systemic justice?

Some of the recent reforms have attracted criticism because of their obvious impact on individual applicants’ means to access justice[24] as well as the concern of a potential indefinite delaying of applications, which do not fall into the above-mentioned categories.[25] Other authors on the contrary have argued that the right to individual petition has never been the primary objective of the Court. It has been argued instead that the Court’s priority should be allocated to adjudicating new and complex human rights issues of particular interest of the concerned State and the Convention community as a whole (‘systemic’ or ‘constitutional justice’) rather than seeking to remedy every human rights violation (‘individual justice’).[26] Most prominently, former Judge and President of the Court, Luzius Wildhaber, has been a firm advocate of such a transformation. [27]  He argued that

‘[t]wo kinds of transition […] appear inevitable; either ‘to constitutionalisation’ which is already underway, albeit slowly and so far only partially, or ‘to stagnation or collapse’ under the weight of relentlessly accumulating petitions.’[28]

This portrayed dichotomy of two irreconcilable approaches, has, however, expressly been rejected by the Committee of experts for the improvement of procedures for the protection of human rights (Steering Committee for Human Rights). The Committee argued that it

‘does not […] believe that the choice is one between two views that seem radically opposed: one under which the Court would deliver “individual justice”; the other under which the Court would deliver “quasi-constitutional justice”. Both functions are legitimate functions for a European Court of Human Rights […]. [29]

Nonetheless, the recent reforms clearly indicate a shift towards a more ‘constitutional’ approach to justice by prioritizing cases which raise public-policy issues in the common interest. It is notable in this regard that Judge and current President of the Court, Robert Spano, called for a ‘paradigm shift’ at the beginning of 2021 by focusing ‘on strengthening [the Court’s] prioritization policy’.[30] In this sense, the press release regarding the newly adapted case-processing strategy summarizes:

‘The goal of the new strategy is to ensure that the Court’s success will be measured not only in numerical terms […] but more importantly by reference to its adjudication of those cases which address core legal issues of relevance for the State in question and for the Convention system in general.’[31]

From the Court’s perspective it is certainly important to add to the general development of the law. At the same time, the effect the newly adapted strategy has on applicants, e.g. of repetitive cases which do not fall into this priority policy, must be taken into account. As Dinah Shelton has highlighted before with regard to repetitive cases:

‘Those applicants now arriving are as meritorious as those who came before and there is no principled reason why the later in time should suffer additional harm from the failure of the system to insist on compliance.’ [32]

In conclusion, it remains to be seen how the latter cases will be processed in practice (including the effect of applied IT tools[33]) and how the Court will deal with the political pressure it faces when deciding which case to prioritise. Clearly a delicate balance between different interests must be found. Finally, it is also up to the States to grant the necessary resources so that the Court can deliver justice to all victims of human rights violations, whoever the applicant and whatever the right concerned and the nature of the violation might be. Even more importantly, however, all the States parties must take “their primary responsibility to secure the rights and freedoms defined in [the] Convention and the Protocols thereto” much more seriously, in accordance with the principle of subsidiarity.[34]

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*Dipl.-Jur. Anna Kohte, LL.M, Master 1 en droit, is a research associate and doctoral candidate at the chair of Prof. Dr. Thomas Giegerich at Saarland University.

[1] ECtHR, the European Court of Human Rights is launching a new case processing strategy, Press Release, 17 March 202, available here: <http://hudoc.echr.coe.int/eng-press?i=003-6966913-9378085> (last accessed 25 April 2021).

[2] See ECtHR, Statistics, available here: <https://www.echr.coe.int/Pages/home.aspx?p=reports&c=> (last accessed 25 April 2021).

[3] ECtHR, Analysis of statistics 2011, January 2012, p. 4 available here: <https://www.echr.coe.int/Documents/Stats_analysis_2011_ENG.pdf> (last accessed 25 April 2021).

[4] ECtHR, ‘A Court that matters/Une Cour qui compte: A strategy for more targeted and effective case-processing’, 17 March 2021, available here: <https://www.echr.coe.int/Documents/Court_that_matters_ENG.pdf> (last accessed 25 April 2021).

[5]  Report of the Evaluation Group to the Committee of Ministers on the European Court of Human Rights, EG Court (2001)1, 27 September 2001, para. 98.

[6] Article 35 Para. 3 (b) ECHR was introduced in 2010 with the entering into force of Protocol No. 14 and will become more restrictive with the entry into force of Art. 5 of Protocol No. 15 (see next footnote).

[7] Protocol No. 15 will enter into force on 1 August 2021 and reduces the time within which an application must be lodged from six to four months after a final domestic decision.

[8] ECtHR, The Court’s Priority Policy, available here: <https://www.echr.coe.int/Documents/Priority_policy_ENG.pdf> (last accessed 25 April 2021).

[9] Rule 41 of the Rules of Court.

[10] ECtHR, ‘A Court that matters/Une Cour qui compte: A strategy for more targeted and effective case-processing’, 17 March 2021.

[11] ECtHR, The Court’s Priority Policy, available here: <https://www.echr.coe.int/Documents/Priority_policy_ENG.pdf> (last accessed 25 April 2021).

[12] Rule 39 of the Rules of Court.

[13] See ECtHR, ‘Fact Sheet Interim measures’, available here: <https://www.echr.coe.int/Documents/FS_Interim_measures_ENG.pdf> (last accessed 25 April 2021), p. 2.

[14] Application no. 4743/21. See the Court’s Press Release of 19 April 2021, available at <https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-7000610-9434654%22]}> (last accessed 25 April 2021).

[15] ECtHR, The Court’s Priority Policy, available here: <https://www.echr.coe.int/Documents/Priority_policy_ENG.pdf> (last accessed 25 April 2021).

[16] Idem.

[17] ECtHR, ‘A Court that matters/Une Cour qui compte: A strategy for more targeted and effective case-processing’, Press Release, 17 March 2021.

[18] ECtHR, Grand Chamber Decision as to the Admissibility of Application no. 33071/96, Malhous v. Czech Republic, 13 December 2000.

[19] Communication dated 14 April 2021.

[20] Janneke H. Gerards and Lize R. Glas, ‘Access to justice in the European Convention on Human Rights system’, Netherlands Quarterly of Human Rights, 35 (2017) 1, pp. 11-30, 25.

[21] ECtHR, ‘A Court that matters/Une Cour qui compte: A strategy for more targeted and effective case-processing’, Press Release, 17 March 2021.

[22] Article 28 Para. 1 (b) ECHR.

[23] ‘Broader-WECL’ (adopted in 2017) refers to the application of well-established case law (WECL) beyond repetitive cases (for which the WECL policy was initially adopted). ‘The WECL fast-track procedure’ in turn (introduced in 2015) is based on an ‘increased automation of the drafting process, through the use of IT “modules” created for specific types of cases such as conditions of detention and length of proceedings, combined with tight internal deadlines.’, see Securing the long-term effectiveness of the supervisory mechanism of the European Convention on Human Rights: the Court’s action in 2018-2019, Steering Committee for Human Rights, CDDH(2019)25, 14 June 2019, para. 28.

[24] See e.g. Janneke H. Gerards and Lize R. Glas, ‘Access to justice in the European Convention on Human Rights system’, Netherlands Quarterly of Human Rights, 35 (2017) 1, pp. 11-30; Dinah Shelton, ‘Significantly Disadvantaged? Shrinking Access to the European Court of Human Rights’, Human Rights Law Review, 16 (2016), pp. 303-322.

[25] Antoine Buyse, ‘The Court’s New Priority Policy’, ECHR Blog, accessible here: <https://www.echrblog.com/2010/11/courts-new-priority-policy.html?m=1> (last accessed 25 April 2021).

[26] See Steven Greer, Constitutionalizing Adjudication under the European Convention on Human Rights, Oxford Journal of Legal Studies, 23 (2003) 3, pp. 405-433. See also regarding the Court’s functions Report of the Evaluation Group to the Committee of Ministers on the European Court of Human Rights, EG Court (2001) 1, 27 September 2001, para. 98. ECtHR, Karner v. Austria, Application No. 40016/98, 24 July 2003, para. 26.

[27] Steven Greer and Luzius Wildhaber, Revisiting the Debate about ‚constitutionalising‘ the European Court of Human Rights, Human Rights Law Review, 12 (2013) 4, pp. 655-678, 664.

[28] ECtHR, Loizidou v. Turkey, Application No. 15318/89, 23 February 1995, para. 75.

[29] Guaranteeing the long-term effectiveness of the European Court of Human Rights – final report containing proposals of the CDDH, Steering Committee for Human Rights, CM(2003)55, 8 April 2003, para 11.

[30] ECtHR, the European Court of Human Rights is launching a new case processing strategy, Press Release, 17 March 2021.

[31] ECtHR, ‘A Court that matters/Une Cour qui compte: A strategy for more targeted and effective case-processing’, Press Release, 17 March 2021.

[32] Dinah Shelton, ‘Significantly Disadvantaged? Shrinking Access to the European Court of Human Rights’, Human Rights Law Review, 16 (2016), pp. 303-322, 306.

[33] Such as the ‘WECL fast-track procedure’ which in 2019 was being used for 23 different types of cases, see above n. 23.

[34] The passage quoted is from Art. 1 of Protocol No. 15 and will be added to the preamble of the Convention with the entry into force of that Protocol.