ELI Research Paper on Court's Case-(Over)Load

The European Law Institute (ELI) in Vienna has published a research paper on the case overload of the European Court of Human Rights. The paper was written by the Court's former registrar and future judge Paul Mahoney together with Luzius Wildhaber, Jean-Paul Jacqué, and Mark Entin. The report contains a lot of interwesting proposals to deal with the issue. However, it is notable that the report (at first glance at least) does not seem yet to mention that the caseload is finally becoming more manageable with a current decrease in the backlog for the first time in years. This is the Institute's press release about the report:

Since the single, permanent European Court of Human Rights (“the Court”) was set up under Protocol No. 11 to the European Court of Human Rights in 1998, the Court has not been able to dispose of cases at the same pace as they come in. Despite achieving remarkable productivity gains in the 12 years since 1998, the Court has so far never been in a position to reverse this imbalance between incoming and outgoing business.


In 2010, 61,300 new applications were allocated to a judicial formation (an increase of 7% compared with 2009), whereas a little over 41,000 applications were terminated (itself representing an increase of 16% on the results achieved in 2009). Thus, for the 5,000 or so new applications being allocated each month the average monthly deficit, inflating the number of pending applications, was almost 1,700.

On the other hand, the single‐judge formation, one of the innovations provided for in Protocol No. 14, has led to an increase of no less than 46% in comparison with 2010 in the number of applications (39,882) rejected as inadmissible or struck out in the first ten months of 2011. Despite this jump in productivity, the monthly deficit remains at 1,250 applications and the stock of pending applications has risen to the record height of almost 155,000 applications.

The mathematics is simple: the Convention system is bursting at the seams. The consequence of the constant imbalance between input and output is that the list of pending cases, the backlog (that is, the stock of all those applications not processed within what is considered to be a reasonable time) and the delays for applicants have been inexorably increasing each month. The metaphor of the death of the Convention system by slow suffocation has been used. What is sure is that if the trend of incoming applications outstripping decided cases continues, there must come a point where the Court is so overwhelmed that the breakdown of the Convention system will be inevitable.

The Working Party of the ELI, chaired by Paul Mahoney from the UK and assisted by an Advisory Committee consisting of senior judges and experts in the field, addressed the caseload at the Court. The result - the ELI Statement on “Case-Overload at the European Court of Human Rights” - aims to propose practical steps which can help the Court settle the backlog while at the same time maintaining the high quality of work.

Dean Spielmann New President of the European Court

The judge elected on behalf of Luxembourg, Dean Spielmann, has today been elected by his peers as the successor to the Court's current President, Nicolas Bratza. The latter's term of office as judge at the European Court of Human Rights is due to expire on 31 October. Spielmann will succeed him on 1 November. The change comes after a momentous year in the Court's history, with more external criticism than before (although the storm seems to have subsided a little) and with the Brighton reforms on the agenda for the years to come. Judge Spielmann will thus face not only the daunting task of more streamlining of the Court's own procedures in order to tackle the now finally slightly decreasing caseload - in addition, his role will also be one of public diplomacy in continuing to explain - like his predecessors - the Court's important role in the European system of human rights protection.

Dean Spielmann has been a judge at the Court since 2004, Section President since 2011 and Vice-President since this summer. The latter election was to attentive observers a sign that judge Spielmann was in the running for the Court's presidency, just as another recent event might have provided a clue: on a visit to the Inter-American Court of Human Rights two weeks ago, the Court's current President, Bratza, was accompanied by a Spanish-speaking colleague (Casadevall), section registrar Quesada and ... Judge Spielmann. A short CV can be found on the Court's website.

The election also led to more reshuffling within the Court. Guido Raimondi, judge in respect of Italy, will be Vice-President as of 1 November and Mark Villiger (Liechtenstein) and  Isabelle Berro-Lefèvre (Monaco) will become Section Presidents. They have all been elected for a three-year term and will take up their respective duties on 1st November 2012.

In an interview given to a Luxemburg newspaper, Le Quotidien, on the occasion of his election as Vice-President a few months ago one can read some of Judge Spielmann's views on the Convention, the Court and its role. Although he emphasizes that the Court cannot invent new rights, he does strongly advocate the Court's standing case-law that the ECHR is a living instrument to be interpreted according to present-day conditions, or in Spielmann's words to give the Convention "un relief contemporain".

My congratulations - and wishes of good luck and much wisdom - to judge Spielmann and the other judges appointed in their new functions!

New ECHR Academic Articles

The newest 'current contents' selection of SIM's documentation (August 2012) includes a number of articles on the Convention and the Court:

* G. Martinico, 'Is the European Convention going to be ‘supreme’? A comparative-constitutional overview of ECHR and EU law before national courts', European Journal of International Law, vol. 23, no. 2 (2012) pp. 401-424.

The aim of this article is to answer the question, ‘are national judges extending the structural EU law principles (primacy and direct effect) to the European Convention on Human Rights’? This article does not intend to examine the broader issue of the

rapprochement between the legal systems of the EU and the European Convention on Human Rights (ECHR) but it concentrates on how national judges treat the norms of the ECHR compared with their treatment of EU law. I have structured this article in three parts. The first part offers a first look at the ‘constitutional variety’ existing in terms of constitutional provisions devoted to the impact of the ECHR and EU laws on the national systems. In the second part I will move to analyse the relevant case law of the domestic judges on three factors of potential convergence: consistent interpretation, disapplication of national law conflicting with European provisions, and emergence of a counter-limits doctrine. Finally, in the third part I will offer some concluding remarks on the convergence issue
* B. Dunlap, 'Protecting the space to be unveiled: why France's full veil ban does not violate the European Convention on Human Rights', Fordham International Law Journal,  vol. 35, no. 4 (2011/12) pp. 968-1026.


* N. Holcroft-Emmes, 'Life after Bankovic and Al-Skeini v. UK: extraterritorial jurisdiction under the European Convention on Human Rights', Oxford University Undergraduate Law Journal, no. 1 (2012) pp. 11-18.

* L. Lavrysen, European Asylum Law and the ECHR: An Uneasy Coexistence, Goettingen Journal of International Law, vol. 4, no. 1 (2012) pp. 197-242.

During the last two decades the European Union has become a major actor in the field of asylum law. Meanwhile, human rights law, in particular the European Convention on Human Rights (ECHR), has become of paramount importance in this field. This paper highlights certain areas of concern in the European Asylum System from the viewpoint of the ECHR. It particularly focuses on the Dublin II Regulation, the reception conditions and the detention of asylum seekers.

A Practical Guide on Admissibility Criteria

The Council of Europe has published the second edition of 'Bringing a case to the European Court of Human Rights - A practical guide on admissibility criteria' both in English and in French. It is, as far as I can see, the paper version of the guide the Court already made available online earlier. This is the abstract:

The European Court of Human Rights is currently overloaded with cases (there were almost 150,000 pending applications at the end of March 2012). Some 90% of all applications are eventually declared inadmissible. Such cases clog up the Court’s docket and obstruct its examination of more deserving cases where the admissibility requirements have been satisfied and which may concern serious allegations of human rights violations.

The 2010 Interlaken Conference on the reform of the Court called upon the “States Parties and the Court to ensure that comprehensive and objective information is provided to potential applicants on the Convention and the Court’s case-law, in particular on the application procedures and admissibility criteria”.

The Court’s first response to this call was to prepare this practical guide on admissibility criteria. The guide seeks to reduce the number of obviously inadmissible cases by enabling legal practitioners to properly advise their clients on their chances of bringing an admissible application.

 This second edition covers case-law up to the end of March 2011.

New Edition of German-Language ECHR Handbook

As I am currently enjoying the hospitality of the Ludwig Boltzmann Institut für Menschenrechte (BIM) in Vienna, where I am doing some research, I cannot fail to mention the publication of the fifth edition of an important Austrian publication on the ECHR: 'Europäische Menschenrechtskonvention. Ein Studienbuch' written by Christoph Grabenwarter, professor of law at the Wirtschaftsuniversität Wien and judge in the Austrian Constitutional Court, and Katharina Pabel, professor at the Johannes Kepler Universität Linz. The thorough but compact volume deals with both the substance of ECHR rights as well as with the Convention's procedural law and includes the newest developments such as the upcoming accession of the European Union to the European Convention. I have already benefited a lot from its clear and systematic treatment of the provisions of the ECHR.

Newest Revue Trimestrielle des Droits de l'Homme

The newest issue of the Revue Trimestrielle des Droits de l'Homme (No. 91) has been published. All its main articles are related to the European Court and European Convention. Here is an overview:

* Françoise Tulkens, Sébastien Van Drooghenbroeck & Frédéric Krenc, 'Le soft law et la Cour européenne des droits de l’homme : questions de légitimité et de méthode' 

* Catherine Haguenau-Moizard, 'La Cour suprême britannique et la Cour européenne des droits de l’homme : une nouvelle voix dans le dialogue des juges'

* Céline Ruet, 'Les droits individuels face au phénomène religieux dans la jurisprudence récente de la Cour européenne des droits de l’homme'

* Agata de Laforcade, 'L’articulation entre les contrôles du Conseil constitutionnel français et de la Cour européenne des droits de l’homme en matière pénale'.

New Book on ECHR - EU Interactions

Giuseppe Martinico, of the Centro de Estudios Politicos y Constitucionales in Spain and Oreste Pollicino, Associate Professor of Comparative Law at Bocconi University in Italy have published a new book in which they research the extent of convergence between Europe's two main international legal systems: ECHR Law and EU law. The book, published by Edward Elgar Publishing, is entitled 'The Interaction Between Europe’s Legal Systems - Judicial Dialogue and the Creation of Supranational Laws'. This is the abstract:

This book examines the broad issue of the rapprochement between the legal systems of the EU and the European Convention of Human Rights (ECHR) and asks whether the two systems are converging. While the literature on the issue of the national application of EC/EU law or that of ECHR norms is voluminous, a specific comparative analysis that takes into account the national judicial treatment of both laws has been lacking, until now. 

 This detailed book begins with some reflections on the importance of judicial interactions in European constitutional law, before going on to compare the relationships between national judges and supranational laws across 27 European jurisdictions. For the same jurisdictions it then makes a careful assessment of way in which ECHR and EU law is handled before national courts and also sets this in the context of the original goals and aims of the two regimes. Finally, the authors broaden the perspective to bring in the prospects of European enlargement towards the East, and consider the implications of this for the rapprochement between the two regimes.

The Interaction between Europe’s Legal Systems will strongly appeal to academics and students in European law, comparative law, theory of law, postgraduate students and LLM students in European law and in comparative law. 

And here is the table of contents:

Contents: Part I 1. The Interaction between Europe’s Legal Systems: An Introduction to the Investigation 2. The Formal Parameter 3. The Law in Action Part II 4. External Convergence: Towards a Rapprochement of the EU and ECHR Regimes After the Enlargement of Europe to the East 5. The Enlargement of Europe to the East and the Reaction of the European Court of Human Rights 6. The Enlargement of Europe to the East and the Reaction of the European Court of Justice 7. Conclusions Index

Miscellaneous News

Today, I have a number of miscellaneous issues for you. First, over at the Multirights Blog, there is a report about the resumed negotations between the European Union and the Council of Europe on the EU's accession to the ECHR. These new negotiations seem to offer space for a partial re-negotiation of the draft agreement from last year, about which I blogged earlier here.

Secondly, my colleagues of the Strasbourg Observers blog have this month launched a blog tribute to the Belgian judge at the ECtHR, Françoise Tulkens, who is stepping down after serving since 1998, the start of the fulltime Court. An innovative and well-deserved electronic tribute!

Thirdly, the Grand Chamber judgment in an important freedom of expression case of last month, Mouvement Raëlien Suisse v. Switzerland, has led to a number of interesting online comments about the case. Comments by Rónán Ó Fathaigh are to be found on the Human Rights in Ireland blog; comments by Marko Milanovic on EJIL Talk!; by Rosalind English on UK Human Rights Blog; and by Gabrielle Guillemin on Inforrm's Blog.

Possible Infringement Proceedings Against Russia

Among a number of reforms brought about by Protocol 14 to the European Convention is the possibility for the Committee of Ministers of the Council of Europe to bring infringement proceedings against a state party to the Convention. Article 46(4) of the Convention reads:

If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.

The decision to do so can be made by two thirds of the states' representatives. The Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements also specify in Rule 11 that this procedure will only be used in exceptional circumstances. The state concerned will be formally notified and will be given another six months to implement the judgment. During infringement proceedings, the Committee will be represented before the Court by its Chair (which rotates every six months) unless otherwise decided. The latter may obviously apply when the chairing country is also the state against which the proceedings are brought.

Thusfar the possibility of infringement proceedings has not yet been used. One may assume that this has to do both with political sensitivity as well as with questions of effectiveness: why would a country suddenly abide by a Court decision in an infringement procedure if it previously consistently declined to implement the original judgment at stake.

This summer, however, a first major push has been made to induce the Committee of Ministers to start infringement procedures. In the run up to the Committee's upcoming September meeting, the UK-based European Human Rights Advocacy Centre (EHRAC) and the Russian NGO Memorial Human Rights Centre have submitted a formal requested the Committee to start initiate proceedings against the Russian Federation for failing to comply with the Court's 2005 Isayeva judgment. The case, about the aerial bombarment of a village in Chechnya by Russian security forces, revealed severe human rights violations. Thusfar Russia has failed to conduct an effective investigation into the events. The case is exemplary of many other cases about the situation in the Southern Caucasus: the Court finds multiple human rights violations, Russia may pay compensation to the victims eventually (but not often very speedily) but fails to investigate or to prosecute and punish the perpetrators. The current request by the two NGOs is an attempt to tackle the impunity in the region in a new way. A document compiled by the NGOs shows the many instances in which Council of Europe institutions pointed at this problem. The formal request argues that in this case one can speak of exceptional circumstances due to the gravity and scale but also the systemic and continuing nature of the human rights violations in the region.

It is ironic that the very state that delayed the entry into force of Protocol 14 for so many years is now the first to potentially face one of its procedural innovations. It is difficult to predict whether the Committee of Ministers will heed the call of these two NGOs who have been actively supporting victims of the violations at stake before the Court. Is it still too sensitive to launch such a high-profile legal attack on the Russian Federation or do other state parties finally think that more steps are needed than just another series of interim resolutions calling for implementation? There may be another effect of this action though, irrespective of whether infringement proceedings are started. Thusfar the Court has chosen to deal with the human rights violations in Chechnya on a case by case basis. In spite of the calls of many applicants to formally declare that the problem is systemic, the Court has declined to do so (although it did ask questions about the potentially systemic nature of the issues in a case communcated last year, Aslakhanova v Russia - see para. 56 of the NGO request). Maybe the time has come for the Court to state what many observers have remarked for a long time: that the gravity and continuity of the human rights violations are such that there is a systemic problem of violence and impunity in the region. One may hope for all the victims that this latest attempt will not end up in one of the drawers of the Committee of Ministers without any action being undertaken.

New ECHR Publications

As a kick-off of the new academic year, the newest online contents overview of the documentation centre of SIM is online now. These are its main ECHR-related references:

* A. Hanke,  'Custody and visitation rights in Germany after the decisions of the European Court on Human Rights', Family Law Quarterly, vol. 45, no. 3 ( 2011), pp. 353-360.

* D. Farget, 'Defining Roma identity in the European Court of Human Rights', International Journal on Minority and Group Rights, vol. 19, no. 3, (2012) pp. 291-316.

* B. Middleton, 'European Court of Human Rights: assuring deportation of terrorist suspects', Journal of Criminal Law, vol. 76, no. 3 (2012) pp. 213-219.

* I. Radacic, 'Religious symbols in educational institutions: jurisprudence of the European Court of Human Rights', Religion and Human Rights,  vol. 7, no. 2 (2012) pp. 133-149.