Reform of the European Court of Human Rights: would closer co-operation with national senior courts help?

The current backlog of cases at the European Court of Human Rights is a well-documented problem.  Initiatives adopted in the last decade to address the issue have made some progress, but more is required.  To that end, Freshfields and a team of barristers at Monckton Chambers have developed a draft proposal to help to reduce the number of cases outstanding before the Court, focusing on the role of national senior courts.  The authors now seek comment on their draft report; and details of how readers might respond are set out below.

The problem

The current backlog of cases at the European Court of Human Rights (the ECtHR) is a well-documented problem. At present, some 10,000 serious, non-repetitive cases are awaiting their first judicial examination before the ECtHR. As at the end of 2018, more than 1,500 such cases – equivalent to the ECtHR’s average annual output of judgments – had been awaiting the first judicial examination for over 10 years.

Over the last decade, various initiatives (most notably the Interlaken Process) have sought to address the problem. Significant progress has been made, including the introduction of Protocol No 14 in 2010 (which adopted a single judge composition and expanded the competence of Committees of three judges) and Protocol No 15 (which will, once ratified, reduce the time limit for lodging applications).

However, there is little doubt that more is needed to help reduce the numbers of cases outstanding before the ECtHR.  So, Freshfields and a team of barristers at Monckton Chambers have developed a draft proposal, emphasising the role of national courts in clearing the backlog, on which the authors now seek comment.  

The proposal

The draft report (available for download here) proposes the adoption of a rule of procedure or practice by national senior courts requiring those courts, in any judgment rejecting a claim based on the Convention, to include a succinct statement of the reasons for dismissing the Convention arguments, and of the national significance of that claim.

The report elaborates on this proposal, in particular:

• explaining how it might assist the ECtHR, without over-burdening national courts;
• drawing on several parallels in national court procedures which illustrate how the proposal might work; and
• describing the process by which it may be implemented across Council of Europe States on which we were able to benefit from the knowledge of our network colleagues.

An open discussion

On Tuesday 21 May 2019, the British Institute of International and Comparative Law hosted a panel discussion on the draft report, chaired by Lord Reed, the Deputy President of the UK Supreme Court.  

In the course of the discussion, the following questions were raised for further consideration:

1. The draft report currently focuses on procedure in eight countries (Austria, Belgium, France, Germany, Italy, the Netherlands, Spain and – particularly – the UK). The authors would be grateful for insights into the viability and suitability of the proposal in other Council of Europe Member States, particularly States such as Russia, Ukraine, Turkey and Romania, from which a great many of the ECtHR’s cases originate.

2. Might the proposal generate significant extra work for national courts, such that they would be resistant to its implementation? Although the proposal envisages a very short, succinct statement of the reasons for dismissing a Convention claim and its significance, the point was raised that the form of preliminary references to the Court of Justice of the European Union – which are in some respects analogous to the proposal – are often subject to detailed submission and can occupy a significant amount of court and party time.

3. To what extent might the Proposal add to Strasbourg’s burden by requiring it to explain (in greater depth) why it is departing from the national court’s position? Might this represent an impediment to the adoption of the Proposal?

4. Might delegating the preparation of the summaries envisaged in the proposal to national court registries/judicial assistants (with an appropriate degree of judicial supervision) be (i) possible; or (ii) appropriate?

5. Do you believe the proposal is aligned with the principle of subsidiarity? Is there a risk that it might encourage the Strasbourg court to afford too great a margin of appreciation to national courts? If so, how might this risk be mitigated?

6. Is there a risk that the proposal would encourage a “two-speed” system, whereby the Strasbourg court is more likely to admit (or expedite) cases from States which have adopted the proposal? How might this be mitigated?

7. Is the proposal only suitable for senior (i.e. supreme / ultimately superior) national courts? Could or should it be rolled out to lower national courts in which domestic remedies may be exhausted?

Further comments

The authors of the report are now seeking input on the proposal. Please share with your colleagues and networks, and send any comments on the draft report, or responses to the queries posed above, to ecthr.reform@freshfields.com by 5pm on Friday 14 June 2019.

Contributors to the draft report: Monckton Chambers: Piers Gardner, Paul Lasok QC, Ben Emmerson QC, Azeem Suterwalla, and Alexandra Littlewood; and Freshfields: Deba Das, Ashmita Garrett and Michael Quayle