Unclogging the court

Brexit provides new context for the UK’s role in the Council of Bar and Law Societies of Europe – particularly its scrutiny of the European Court of Human Rights’ excessive caseload, as Piers Gardner explains

Recognised as the voice of the European legal profession, the Council of Bar and Law Societies of Europe (CCBE) represents, through its members, more than one million European lawyers. 

Established in 1960, membership now includes the Bars and Law Societies of 45 countries from the European Union, the European Economic Area, and wider Europe (32 full, three associate, and 10 observer member countries).

The CCBE takes up issues at the very heart of practitioners’ concerns, from transactional law to disputes. The remit of one such CCBE specialist committee, the CCBE’s Permanent Delegation to the European Court of Human Rights (ECtHR), is the practice and procedure of that court. This delegation is comprised of practitioners from most of the CCBE’s member and associated states and is a forum for exchanging national experience, as well as providing feedback to the ECtHR and other Council of Europe institutions.

Brexit provides a new context for the UK’s contribution to this work and, with the accumulated expertise of international human rights law amongst the legal profession in the UK, may actually enhance its relevance, at least in the foreseeable future. In addition, the potential adoption of a UK Bill of Rights down the line as a replacement for the Human Rights Act 1998 would almost inevitably lead to greater recourse to the Strasbourg court.

Monitoring efficiency levels

Overall, much progress has been made in improving the ECtHR’s efficiency and it is now deciding more cases annually than new cases are lodged. The court’s total docket has fallen from 150,000 in 2011 to 76,600 today. For the first time in many years, the number of new applications fell in 2014 and 2015 to some 50,000 cases. More than half are rapidly identified as inadmissible. So with productivity up and new applications’ numbers dropping, is the ECtHR’s excessive case load, and the related delays, solved?

The simple answer is ‘No’. Progress made is largely due to changes in procedure proposed by governments. A major part of the reduction in the backlog is due to single judges disposing rapidly of cases without merit. The filtering section performs an early triage of most new cases, applying the priority criteria in r 41 of the Rules of Court. (Urgent cases are prioritised and clearly inadmissible cases are immediately allocated for single judge disposal, within months or weeks of being lodged.)

This masks the ‘real backlog’, however – tens of thousands of cases which have not been granted priority but raise arguable issues, both serious and complex. Cases from some jurisdictions have been pending for eight years without examination. Some will ultimately lead to findings of violations of the Convention, well over 10 years after the applications were lodged. Delays in these largely unexamined cases are as bad as any the ECtHR has ever known.

Falling numbers of new registered applications may reflect changed litigant behaviour across Europe, but is also due to the court’s own stricter operation of r 47 of the court’s rules of procedure on the lodging of applications. Rule 47 requires the whole application to be made exclusively on the court’s form: piecemeal applications are rejected. This adds a different kind of frustration; restrictions on the registry’s correspondence with applicants risks generating uncertainty as to whether a case has been registered and when it will be decided.

Execution of judgments

Beyond the court, the execution of its judgments by the Committee of Ministers of the Council of Europe is often overlooked by practitioners. It has undergone a similar overhaul, again with insufficient practitioner input, to address the consequences of the court’s accelerated work rate. More cases processed means more final judgments for the respondent governments to execute (involving individual measures of reparation for applicants and general measures to prevent the repetition of similar cases in future). Unsurprisingly, but little known, the specialised human rights format of the Committee of Ministers, the CMDH, provides for lawyers to make submissions for their clients to ensure that judgments are translated into practice.

Call for practitioner feedback

The delegation is the best-placed forum for exhorting improvements and a crucial channel for disseminating news to practitioners at the coalface. (Our step-by-step guide to the court’s and CMDH’s procedure, including the new state of proceedings search engine and scope for lawyers to make submissions for their clients to the CMDH can be found here) We welcome feedback about practical issues and further suggestions for improving practice and procedure – email: pgardner@monckton.com with the subject line ‘CCBE’.

Contributor Piers Gardner, Monckton Chambers

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Piers Gardner

Piers is a barrister at Monckton Chambers. He has acted in cases concerning over 30 states in Strasbourg, including Soering, Craxi, Krenz, Georgia v Russia and Yukos.