Op-Ed: “The European Court of Human Rights at a Crossroads. Some thought about the new motto ‘A Court that matters’” by Laurence Burgorgue-Larsen
A ‘Court that matters’. This is the new motto launched on 17 March 2021 by the European Court of Human Rights (ECtHR) in order to present its new procedural strategy. It sounds very positive and powerful, given the impressive backlog the Court is facing (62,000 pending applications at the end of 2020, Annual report 2020, p. 144). Every tribunal, domestic or international, must be worried about the length of its own proceedings because we all know that good, not to say, great justice, is quick justice. In such a context, having imagined ‘a more targeted approach to processing potentially well-founded “impact” cases’, is one more innovation to be credited to the Court. It is taking seriously the very classical formula which it applies constantly in relation to its domestic counterparts: Justice delayed is justice denied. This new methodology is built on and aims to strengthen the priority policy created ten years ago in 2009 and reinforced in 2017. Dates here are important because it highlights the overall context of such technical adaptations. 2009 was a very hard year for the Court: it delivered 1,625 judgments and we can imagine what this implied in terms of previous selection at the admissibility stage. It is not surprising the priority policy appears the same year ‘with a view to speeding up the processing and adjudication of the most important, serious and urgent cases’ (fn 1). (Emphasis added). In the aftermath, in 2010, the so-called reform process was launched in a very official way in Interlaken. Since then, four other bold diplomatic conferences were organised in Izmir (2011), Brighton (2012), Brussels (2015) and Copenhagen (2018) in order to adapt several functional aspects of the European system, among them the backlog.
Such a continuous transformation – organised directly by the Court in its day-to-day work and by States at the diplomatic level – demonstrates one thing: the recurrent tension between two opposing conceptions of the European system of guarantee. Let me put the terms of the debate this way: is individual justice sustainable and feasible any more? Should it not be replaced by a constitutional-type structure in which the Court would intervene only in a limited way, judging emblematic cases that it would have previously identified? This latter option is certainly not a new one. It has been quite strongly defended by the former President of the Court, Justice Luzius Whildaber, inspired by the well-known writ of certiorari used by the US Supreme Court. During the discussions around the elaboration of the Protocol n°11, such a constitutional conception failed. Supporters of individual justice, of which Article 34 is the masterpiece – la ‘clef de voute du système’ – were successful in defending its philosophy and functioning.
Notwithstanding, what are we observing since then? An important series of adaptations (not to say transformations) which, taken together, suggest that the constitutional approach is, gradually, being imposed. On the one hand, everything is done to contain or to refer at the domestic level the flux of cases (the Bronioswki case created the pilot judgment in 2004; Protocol no 14 introduces the ‘significant disadvantage’ (Article 35 § 3 b) ECHR); Protocol no 15 highlights the mantra of the subsidiarity and the margin of appreciation; and the timeline to present a case before the Court was reduced and Rule 47 of the Rules of Procedure was promoted); last but not least, Protocol no 16 aims to foster a constructive relationship with Supreme Courts, hoping, at the end of the day, the res interpreta doctrine will be taken seriously, avoiding the presentation of new applications. On the other hand, everything is done to tackle quickly inadmissible applications (Protocol no 14 creates the single judge) and to prioritise them, thanks to an impressive modern selection process where judicial management is key. The creation of the Screening Section in 2011, the so-called ‘particle accelerator’, and the optimal use of IT resources (WECL fast track; broader WECL), are transforming the staff of the Registry as managers more than lawyers. The last adaptation launched in March 2021 – which aims to present the Court as a judicial body which matters – is certainly the reform which most closely reaches the ideas of Luzius Wildhaber.
In a nutshell, the Court is creating a new category of priority cases called ‘impact cases’ (category IV-High) which are not raising violations of ‘core rights’ (Articles 2, 3, 4, 5 §1 ECHR), but raise very important issues of relevance for the defendant State and/or the Convention system as a whole. The Court gives three indications in order for the members of the registry to identify those cases, with the help of IT resources. Those cases (1) might lead to a change or clarification of international or domestic legislation or practice; (2) touch upon moral or social issues; and (3) deal with an emerging or otherwise significant human rights issue. Once these criteria are met, it is striking to note that the Court will take into account the ‘whether the case has had significant media coverage domestically and/or is politically sensitive’.
The Court’s desire to speed up the processing of sensitive cases (to put it quickly) is commendable; its prestige and authority are at stake and it is doing everything to take the importance of swift justice seriously. However, it cannot be denied that this selection shows that the Court, because of the backlog, is still moving further away from justice for all, whatever the cost. Indeed, this new management procedure should not conceal the basic process of selecting emblematic cases, because they are the ones that matter…and what about the others?
Laurence Burgorgue-Larsen is Professor or Law at the Sorbonne Law School
(fn 1) Some amendments to the priority categories were made in 2017.