#3632 - Case Load - European Human Rights Law

Case load

Case Load Issues

40k applications each year

800 judgments a year = 98% unjudicated

Neither Protocol 11 which came into force in 1998 nor Protocol 14 which still requires Russia’s permission to implement (correct in 2007) have addressed them.

Wildhaber (2006)

“rapid pace of change surpassed the ability to foresee and anticipate future trends”.

Protocol 11 judicialised the whole convention system. The right of individual petition and the jurisdiction of the court, which had been optional, now became compulsory. The non-binding, somewhat more political aspects of the system (namely the power of the committee of ministers to approve reports by the commission) were abolished.

Protocol 14 – replace the 3 judge committee which decided on the admissibility of applications by a single judge supported by rapporteurs. Instead of the 7 judge chambers a mere 3 judges would now rule on manifestly well founded applications. Art 35 was amended so that those who had not suffered a significant disadvantage could be declared inadmissible, provided that the domestic courts had duly assessed such applications in the light of convention standards and the nature of the application did not necessitate an explanation.

“indisputable that the current system of an unrestricted right of individual petition is no longer capable of attaining the right goals and priorities, that, as a result of the system, too many important applications go unsettled for too long and that the convention systems needs a new direction if it is not to be submerged by the flood of applications or lose all credibility”

McKaskle (2005)

“victim of its own success”

“justice delayed is justice denied”

“the proposals seem laudable, but do not seem to provide the real answer” – need more far-reaching powers to decline to hear cases of relatively minor issues”.

Pilot judgments

Broniowski v Poland – concerned compatibility with the convention of legislative provisions affecting a large number of people (80k), the court for the first time found a systemic violation.

Dembour – complains that the stream-lining of the system has as “its most unfortunate development...the apparent intention to go through and close undeserving cases quickly, whatever the implications”

Increase judges? As Mahoney (2002) said – “genuine collegiality capable of producing a consistent coherent case law would be impossible”.

Article 14

Three approaches are adopted to enhance the effectiveness of the court’s work:

1) there is a reinforcement of the court’s ability to filter out unmeritorious cases

2) new admissibility criterion is introduced which would enable cases to be declared inadmissible where the applicant was not considered to have suffered significant disadvantage.

3) new measures are introduced for dealing with repetitive cases

Amendment to Art 27 gives judges increased powers- competent to take decisions on admissibility or decisions to strike a case out in clear cut cases.

Amendment to Art 28 would permit committees to declare individual applications admissible and to decide these cases on their merits, when the issues involved in the case can be determined by reference to well established case law of the court. Disposes of more repetitive case law.

New admissibility criteria in Art 35 – manifestly ill founded or abuse of right of individual application, no significant disadvantage.

Results and prospects

Jacobs – ECHR as a “chapter in a developing European constitution”.

800m people in 47 countries.

2009 budget only 0.07 EURO per head of population for the year

Dupre – expansion of the convention system to the new democracies of central and eastern Europe brought with it new challenges. Large number of applications.

Around 94% of applications declared inadmissible; 2/3 of judgments represent the application of well-established convention principles.

Kudla v Poland and Broniowski v Poland – reduces number of repetitive cases through pilot judgments. For systemic or structure problems.

Art 14bis

Case load essay plan

Art 33 – any party may bring an application alleging a breach by another party that has ratified the Convention

Art 34 – all parties accept the right of any person, non-governmental organisation or group of individuals”, regardless of nationality, claiming to be a victim of a breach of the ECHR to bring an application against it.

At beginning of 2008 there were over 100,000 cases pending before the Court, and backlog of two years’ worth of applications: 140,000 cases. 60% of these were from 5 countries: Russia, Turkey, Romania, Ukraine and Italy.

A large proportion of petitions were inadmissible BUT the court has no summary mechanism for dealing with hopeless cases; every petition properly filled in must go before a committee of 3 judges and then if admissible before a committee of 5.

Caflisch (2006) – if applications were stopped altogether from coming in this very moment it would take the courts about 3 years to clear backlog..... questions if caseload reducing quality?

Wildhaber (2006) – “rapid pace of change”

McKaskle (2005) – “victim of its own success” and “justice delayed is justice denied”

Keller et al. (2010) – “caseload crises poses a serious threat to the effectiveness of the whole ECHR system and is the biggest challenge in the history of the court”.

800m people in 47 countries

Interlaken (2010) and Izmir (2011)

About 95% rejected as inadmissible.

Lester (2009) – “Like Sisyphus, the court is cursed to roll a huge boulder up a hill, only to watch it roll downa gain”.

Protocol 11

Protocol 11 (1998) – both state and individual applications go to ECtHR.

Right of individual petition.

Commission and Court were replaced by a single full-time institution composed of one judge in respect of each contracting party to the convention.

Abolished requirement that the contracting parties recognise the jurisdiction of the court before it could examine individual cases.

Lester (2009) – mistake to abolish the commission; need of a two-tier system.

Article 37

Strike Out – when doesn't intend to pursue; when been resolved; or other reason

Protocol 14

2004 – would enable a single judge to deal with admissibility cases (can declare inadmissible or strike out without further examination in clear cut cases) and a committee of 3 to give final judgments in cases which are already the subject of well-established case law of the court – solve repetitive cases issues.

Those who had not suffered a significant disadvantage could be declared inadmissible. Safeguards: case must have been duly considered by a domestic tribunal, and not where respect for human rights requires examination of case on its merits.

Russia finally accepted it. Beforehand Protocol 14 bis was adopted as an interim solution in 2009 which allowed the court provisionally to apply the procedural measures in respect of all applications lodged against the states parties which had ratified it. 2010 Russia adopted.

But it “is not a panacea” (Keller et al, 2010) – wont reduce volume of cases. First step – allow the court to survive.

Greer doesn't solve current overload crisis but “bought extra time2.

Pilot judgments

Broniowski v Poland – court introduced idea of pilot judgments. Appropriate where there is a breach of the Convention that results from a systematic defect which may give rise to many claims. In such a case the court state some indication of the general measures...