I. INTRODUCTION
As is well known, the Council of Europe has advanced a number of reforms to help the European Court of Human Rights (ECtHR, Strasbourg Court, or the Court) cope with its workload, most notably the adoption of Protocol 14 to the European Convention on Human Rights (ECHR), which entered into force on 1 June 2010.Footnote 1 More recently, the reform of the Strasbourg machinery was the subject of three High Level Conferences at Interlaken, Izmir, and Brighton,Footnote 2 which led to the adoption of Protocols 15 and 16 ECHR.Footnote 3 The ECtHR's latest Annual Report explains that there has been a decrease in the pending cases before the Court, primarily due to the adoption of Protocol 14: on 31 December 2014, the number of pending applications was 70,000 cases.Footnote 4
Out of all the amendments contained in Protocol 14 ECHR, the introduction of the ‘significant disadvantage’ admissibility criterionFootnote 5 (also referred to below as the ‘new criterion’) was the most controversial. As it currently stands, Article 35(3)(b) ECHR states that:
The Court shall declare inadmissible any individual application … if it considers that … the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.
Once Protocol 15 ECHR enters into force, the phrase ‘and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal’ will be deleted.Footnote 6 During the discussions at Interlaken, Izmir, and Brighton, the new (post-Protocol 15) version of the ‘significant disadvantage’ criterion was considered to be a rather uncontroversial amendment. The (so far) cautious and prudent use of the criterion by the Court has discouraged commentators from considering (problematic) issues of principle related to this provision. Besides, certain States would have assumed during these discussions that by exercising additional pressure upon the Court to expand the use of the criterion, its workload would be reduced, which would be for the better.
The noble intentions of the Court or the drafters of Protocol 14 cannot be questioned; they were keen to secure the long-term effectiveness of the ECtHR and, subsequently, of the Convention itself. Nonetheless, the purpose of this contribution is to step back and, in light of the ongoing discussion on the Court's future direction, to provide a critical overview of issues of principle related to the significant disadvantage criterion. Such a broader theorization of issues of principle is currently missing in the literature. This article advances four lines of criticism vis-à-vis that particular provision. All four lines centre on the tenets that, not only the insertion of the provision was not duly considered as a matter of principle, but also that it was introduced as a rather anxious and certainly miscalculated ‘managerial’ initiative. As a result, this has created significant theoretical, methodological, and doctrinal problems, instead of providing useful and practical solutions.
It is argued that the new criterion sits uncomfortably with the principle of access of individuals to international justice. Thus, the provision undermines the right to an individual petition to the Strasbourg Court, a right which has transformed the European legal order and has contributed to the preservation of the ECtHR's legitimacy.Footnote 7 Accordingly, the new criterion constitutes a misunderstanding of the subsidiarity principle: while the Council of Europe's mission is, undeniably, to encourage national authorities and courts to prevent or provide redress for violations in the first place, this does not mean, nonetheless, that the Court should deny justice as the jurisdiction of last resort. Further, the method introduced is to some extent problematic as it presupposes an assessment of the merits before the decision on admissibility in sensitive areas of human rights litigation. Lastly, the case law concerning the interpretation of Article 35(3)(b) ECHR in its first years suggests that the ECtHR may primarily focus on the financial damage suffered by the applicant before approaching Strasbourg, thereby indirectly proceeding with some form of classification of ECHR rights.
To that end, it is demonstrated that the ‘significant disadvantage’ criterion is fundamentally linked to questions concerning access to justice at the international level, the constitutionalist or adjudicatory function of the Court, the latter's legitimacy, the principle of subsidiarity, and the question as to how and if the exceptional award of non-monetary remedies by the Court is linked to its decisions during the admissibility stage.
To pursue these aims, this article is structured as follows. The next section discusses the background to the adoption of this provision, and provides some initial remarks on the Court's interpretation. Next, the question of access to justice at the international level is considered. That section is followed by a discussion of the right to individual petition and subsidiarity, before exploring the methodological difficulty in considering the merits during the admissibility stage. In addition, the very probable consequence of adjudicating cases on the basis of the pecuniary damage suffered is examined. Lastly, alternative proposals to reduce the ECtHR's workload are presented.
II. BACKGROUND AND PRELIMINARY REMARKS ON THE USE OF THE CRITERION BY THE COURT
The Explanatory Report to Protocol 14 underlined that the reform must not undermine two of the ‘unique’ characteristics of the machinery, namely ‘the judicial character of European supervision’ and the right of individual application.Footnote 8 The Report recognized that the new admissibility criterion required consistent and coherent interpretation by the ECtHR, while granting the latter a degree of flexibility. It was noted that, before developing its respective case law, the Court did enjoy some flexibility as to certain other admissibility criteria.Footnote 9 The drafting of the provision (the Steering Committee for Human Rights—hereinafter CDDH— taking the lead in this respect) and the agreement on the text was no doubt a laborious process.Footnote 10 The Court may use the criterion both on its own motion and further to an objection submitted by the respondent.Footnote 11 The main underlying principle, according to the Research division of the Court, is that ‘a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court’, and therefore ‘purely technical and insignificant’ violations ‘outside a formalistic framework do not merit European supervision’.Footnote 12 The assessment of a minimum level of severity is, of course, context-dependent. The ‘respect for human rights’ clause reproduces Article 37 ECHR insofar as the Court cannot strike out an application ‘if respect for human rights as defined in the Convention and the Protocols thereto so requires’.
It is beyond the scope of this paper to assess the case law concerning the use of the new criterion by the Court,Footnote 13 but it does offer an analysis of issues of principle related to this provision. However, some preliminary remarks are of relevance. It should firstly be noted that there is no hierarchy between the three elements of the new criterion, but the ‘significant disadvantage’ is ‘at the core’ of the provision.Footnote 14
Further, the evidence so far seems to indicate that the Court will first and foremost assess the financial damage suffered by the applicant and/or the compensation he or she is entitled to. In Ionescu v Romania, the Court noted that ‘the absence of [a significant] disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant’.Footnote 15 In Korolev v Russia, the ECtHR was ‘struck at the outset by the tiny and indeed almost negligible size of the pecuniary loss which prompted the applicant to bring his case to the Court’, although adding that ‘a pecuniary loss must not be measured in abstract terms' and that ‘the pecuniary interest involved is not the only element’ to be assessed.Footnote 16 And, indeed, in Luchaninova v Ukraine, for instance, concerning Article 6 ECHR, the Court noted that the outcome of the proceedings ‘had a particularly negative effect on [the applicant's] professional life’, despite the fact that the amount in question was not significant.Footnote 17 Accordingly, in a case concerning Article 5(4) ECHR, the ECtHR—and referring to Article 35(3)(b) ECHR—opined that ‘for the Court to hold generally that any harm resulting from pre-trial detention was thereby ipso facto nugatory for Convention purposes would remove a large proportion of potential complaints under Article 5 from the scope of its scrutiny’.Footnote 18
In Giusti v Italy the ECtHR attempted to establish a more principled interpretation of the new criterion.Footnote 19 Examples where the criterion was applied were discussed, focusing primarily but not exclusively on the financial implications of the alleged violation.Footnote 20 In order to identify the significance of the disadvantage, the Court set out the following considerations as being generally applicable to all such cases: the nature of the right in question, the seriousness of the violation and/or its consequences for the subjective position of the applicant, and, in this evaluation, it will examine what is at stake or the outcome of the national proceedings.Footnote 21 Thus, the ‘subjective perception’ of the applicant, while not sufficient by itself and while in need to be justified on ‘objective grounds’, is taken into account by the Court. Likewise, the lack of pecuniary interest may not render the case unmeritorious if an important question of principle is at stake.Footnote 22 The implications caused by the Court's primary reliance on the financial damage suffered by the applicant is an issue further examined below. The cautious use of Article 35(3)(b) by the Strasbourg Court,Footnote 23 as well as the incoherent approach to its interpretation,Footnote 24 have been duly noted by commentators.
Regarding the removal (further to Protocol 15) of the clause on the prior consideration by a tribunal, it can be argued that one of the ‘safeguards’Footnote 25 of the new criterion is being sacrificed to grant the Court greater flexibility. But it can also be claimed that such an omission is actually compatible with the ECtHR's jurisprudence on effective remedies under Article 13 ECHR and/or the exhaustion of all effective domestic remedies.Footnote 26 In brief, the Court adopted the view that an effective remedy may not always be a judicial remedy and, in addition, that the applicant may be discharged from his/her obligations to exhaust effective domestic remedies even if he/she has not turned to a judicial avenue.Footnote 27
III. THE BIGGER PICTURE: ACCESS TO JUSTICE AT THE INTERNATIONAL LEVEL
It is often overlooked that the rationale behind the right to individual petition before the ECtHR is direct access to justice at the international level. In this context, the new admissibility criterion clearly undermines this principle. An approach emphasizing State sovereignty would view access to justice before international tribunals—as opposed to access to justice before national jurisdictions—not as a human right per se, but rather as a privilege granted by States to individuals. According to another approach, nonetheless, ‘access of individuals to justice at the international level, by means of the exercise of the right of individual petition, give[s] concrete expression to the recognition that the human rights to be protected are inherent in the human person and are not derived from the state’.Footnote 28 Further, the standing of individuals before the ECtHR, or other human rights bodies, is indicative of their gradual empowerment under international law and their transformation into ‘agents’, as opposed to passive subjects or ‘mere recipients or consumers of international legal rules’.Footnote 29
Access to justice is traditionally associated with the concepts of ‘legality and legitimacy, in particular the rule of law and equality’; thus, granting rights without ‘mechanisms for … effective vindication’ is worthless.Footnote 30 In that regard, international human rights law requires States to ‘exercise due diligence to prevent’ violations of certain rights, but also to offer remedies.Footnote 31 Access to justice is a means a State can use to that end. With regard to the Convention, each time the Court confirms a violation, this entails that the domestic courts have failed to remedy this violation before it reaches Strasbourg.
Still, access to justice before the ECtHR needs to be balanced against considerations suggesting that in ‘all modern legal systems’ access to a court becomes ‘increasingly restricted’ as ‘litigation moves from lower to higher levels’.Footnote 32 Evidence of this is the absence of a right to oral hearing on the merits before the ECtHR: indeed, ‘the vast majority of cases are decided without a hearing’.Footnote 33 Thus, the Rules of Court specify that for individual applications (and contrary to inter-State applications) the organization of an oral hearing is subject to a discretionary decision by the Chamber, ‘if it considers that the discharge of its functions under the Convention so requires’.Footnote 34
Nonetheless, the ability for direct individual applications renders the ECtHR the most open of international human rights courtsFootnote 35 (constrained, of course, by well-established admissibility conditions—and putting aside the ‘significant disadvantage’ criterion for a moment). The consequence is, of course, an increase in the number of complaints. If we accept, though, that the ECHR has embedded and exemplified access to justice in international law more than any other international human rights regime,Footnote 36 there are specific conceptual difficulties with the ‘significant disadvantage’ criterion.
The ECtHR's adopted practice vis-à-vis States is noteworthy:
Conditional or selective acceptance of the right of international complaint tends to be incompatible with the object and purpose of a human rights treaty. As human rights belong to all individuals irrespective of their origin, status, or characteristics, it would run counter to the idea of human rights if states were able to pick and choose who has the right to complain and who does not.Footnote 37
The Court has therefore been clear that the right to individual petition is autonomous and independent from ‘concepts of domestic law’ such as locus standi, but also from the substantive ECHR rights.Footnote 38 Accordingly, the ECtHR has been very critical of States hindering the individual's access to the Convention machinery.Footnote 39 This obligation of States stems directly from Article 34 ECHR. Thus, setting a higher threshold for admissibility, however compatible—and obviously so—with the revised text of the ECHR, still sounds somewhat problematic. One wonders whether the Convention should grant the Court the discretion to ‘select’ applications, in the simultaneous existence of case law explicitly stating that contracting parties should avoid doing so. There is plenty of room to suggest that this practice undermines access to justice. Accordingly, the Strasbourg Court has taken a rather broad approach, which, again, is autonomous from the approach under domestic law, to victim status under the Convention.Footnote 40
It has also been claimed that access to international courts (notably the ECtHR) is closely related to an improvement in democratic participation at the domestic level: ‘[the] expansion in rights and access to legal institutions has increased the participatory nature of governance in Europe, empowering individuals to demand and receive a more accountable, transparent, and accessible government’.Footnote 41
That said, access to justice before the Strasbourg Court can be multidimensional. For Greer and Wildhaber, individual access before the ECtHR can be conceived in a narrow and a broader sense.Footnote 42 In a narrow sense, given the extremely limited number of inter-State applications, the Strasbourg Court is ‘inescapably committed’ to relying on individual applications regardless of its general goals. The broader understanding of the term relates to the Convention's ultimate objective to provide redress to ‘genuine victims’ regardless of the gravity of the violation or the ‘bureaucratic cost’ involved.Footnote 43 However, the ‘inevitable tension between the development of access to justice and the growth of litigation’ should be acknowledged, which ‘sometimes creates unbearable pressures on the budgets devoted to justice’.Footnote 44
In addition, the rationale of individual access to international jurisdictions is diametrically opposed to ‘diplomatic protection’.Footnote 45 Under the Convention this is reflected by the very low number of inter-State applications. The Convention machinery was not, of course, designed as a diplomatic forum. Due in particular to the right of individual petition, a system of ‘supranational adjudication’ has progressively been created which, alongside the jurisdiction of the Court of Justice of the European Union (CJEU), has established a ‘community of law’ in Europe.Footnote 46 This system arguably constitutes a ‘sui generis’ European public order transcending ‘the traditional boundaries drawn between international and domestic law’.Footnote 47 Concerning States’ extraterritorial obligations, the Strasbourg Court has referred to ‘the effectiveness of the Convention as a constitutional instrument of European public order (ordre public)’.Footnote 48 That said, it should also be remembered that international law is the ‘foundation on which the Convention operates’.Footnote 49 Being mindful of the Convention's special character, the Strasbourg Court therefore facilitates the ‘interactive mutual relationship’ between the Convention machinery and international law, which eventually leads to the ‘evolution of international law at large, including the international law of human rights’.Footnote 50
IV. THE RIGHT OF INDIVIDUAL PETITION AND SUBSIDIARITY
A. The Right of Individual Petition
The theoretical divide between those supporting the Strasbourg Court upgrading its constitutionalist function and those considering that the Court should insist on relying on its adjudicatory role remains unresolved. Signs of this divide were identified when the ‘significant disadvantage’ criterion was discussed within the corridors of the Court.Footnote 51 Strasbourg judges were ‘split’ on the question of restricting the right to individual petition.Footnote 52
For constitutionalists, since preserving the Court's commitment to both functions is probably unsustainable, it is best for the ECtHR to focus on its constitutionalist mission, that is, ‘clarifying [human rights] standards, holding States to account for them, and sometimes developing those standards beyond their literal (or, indeed, “original”) conceptions’.Footnote 53 According to this view, the ‘systematic delivery of individual justice’ is ‘untenable’ for the Court for three reasons: the Convention initially aimed at improving the ‘character and integrity’ of domestic systems; the Court cannot realistically continue to focus on all applications due to limited resources; and, in any event, the victims are not sufficiently compensated in Strasbourg or (more generally) obtain satisfactory redress.Footnote 54 The ECtHR should be able to select a number of priority cases raising serious human rights issues, reject the remaining ones, and a suitable theoretical basis for this is constitutional pluralism.Footnote 55
It is submitted that while there is merit to these arguments, the right of individual petition cannot be ‘sacrificed’. This right preserves the ECtHR's legitimacy to the eyes of petitioners, while being important from the perspective of the rule of law: ‘the admissibility or grounds for each petitioner should remain the same, with such grounds articulated clearly beforehand in order to maximise clarity and certainty of the legal norms involved’.Footnote 56 According to Leach, the dichotomy between the constitutionalist and the adjudicatory mission is illusionary. He further makes reference to Articles 1 and 34 ECHR and expresses scepticism vis-à-vis the restriction of individual applications in light of the aforementioned provisions, which essentially guarantee the ‘centrality of individual relief’.Footnote 57
This article calls for the preservation of the right of individual petition and consequently argues that the ‘significant disadvantage’ criterion restricting this right should be seriously reconsidered. It is, of course, noted that constitutionalists are driven by the noble intention of preserving the integrity of the Convention machinery, and, in their view, the right of individual petition as such. It is submitted, however, that individual petitions are, in fact, a quintessential element of the constitutional function of the ECtHR or the Convention's goal to embed a European public order whereby the respect for human rights should be safeguarded. If so, the Court's adjudicatory function presupposes its constitutionalist function, and vice versa. To limit one of these functions would simultaneously limit the other. Moreover, if the right to individual petition has legitimized the Court, any possible negative impact on its legitimacy stemming from its restriction would not enable it to perform its constitutionalist function. The ECtHR is already facing increasing pressure from the UK and elsewhere on its allegedly activist approach.Footnote 58 It might therefore be assumed that the Strasbourg judges would wish to avoid having to deal with further allegations concerning their legitimacy—this time, on the part of the complainants. There is also another issue related to legitimacy. One could indeed ask: ‘should we not elevate a “negative” semi-discretion of the Court to reject cases that are minimal in importance to a “positive” discretion of the Court to pick and choose those matters that are at the core of European human rights protection’?Footnote 59 Leaving petitioners aside, the reactions by those States against which the Strasbourg Court exercised such positive discretion would be unpredictable. If the literature on the ECtHR's legitimacy within a generally compliant State (the UK) is already abundant, one wonders, on such a hypothesis, about what might be the potential volume of scholarly contributions in less compliant countries. For the above reasons, the Court should not be granted such discretion under the Convention.
The points raised by Greer and Wildhaber merit examination, particularly the observation related to the Convention's origins.Footnote 60 It should be remembered that there was no general consensus among the drafters on the overall purpose of the ECHR. Some States thought that the Convention should be an instrument pursuing a minimalist agenda to safeguard existing rights and prevent the establishment of dictatorships, while others believed that the Convention should eventually turn into a pan-European Bill of Rights.Footnote 61 The ‘living instrument’ approach by the ECtHR certainly did not satisfy the minimalist camp, but it is not accurate to claim either that a pan-European Bill of Rights has been established, despite the sui generis nature of the Convention.Footnote 62 During the first years of its operation, the Court could not rely on individual petitions simply because that right did not exist. Instead, individuals could submit a petition to the Commission and the latter would decide on whether to forward it to the Court. In addition, certain States did not initially accept the Court's compulsory jurisdiction at all.Footnote 63 Interestingly, nonetheless, it was the Court and the Commission which pressed for the explicit recognition of the individual's right to access the ECtHR,Footnote 64 a right which was used afterwards by the Court to justify its incrementalist approach to the development of human rights standards. The Commission was ‘primarily frustrated with its ambiguous role, while the Court was discouraged by the fact that the existing framework did not allow it to live up to the standards prescribed by Article 6’ ECHR.Footnote 65 If the Court was mainly responsible for this reform, it is by and large contradictory for it to subscribe to, and eventually apply, provisions significantly limiting the right to individual petition.
B. Understanding the Notion of Subsidiarity within the Convention
This raises a related issue, namely the problematic understanding of the subsidiarity principle when the significant disadvantage criterion was agreed. It is essential, first, to provide some clarification on the notion of subsidiarity under international human rights law. According to Carozza, the principle is based on three premises:
[F]irst, that local communities [are] left to protect and respect the human dignity and freedom represented by the idea of human rights whenever they are able to achieve those ends on their own; in many cases, this aspect of subsidiarity will result in a degree of discretion over the interpretation and implementation of rights … [s]econd, subsidiarity supports the integration of local and supranational interpretation and implementation into a single community of discourse with respect to the common good that the idea of human rights represents. And third, to the extent that local bodies cannot accomplish the ends of human rights without assistance, the larger communities of international society have a responsibility to intervene.Footnote 66
In the Convention, expressions of this principle include the requirement for the prior exhaustion of domestic remedies, as well as the doctrine of the margin of appreciation developed by the Court.Footnote 67
The subsidiarity principle featured prominently in the discussions within the CDDH in relation to the drafting of the significant disadvantage criterion. The initial formulation of the amended criterion did not include a reference to the safeguard that the application had to be firstly examined by a domestic tribunal.Footnote 68 There were concerns that the message to national authorities and courts would be that they could disregard minor violations of the Convention.Footnote 69 It was the Austrian delegation which, relying on the subsidiarity principle, proposed the reference to the examination by domestic tribunals, which the CDDH accepted, as subsidiarity ‘affirms the primary role of national authorities to respect and protect the Convention rights’, and it would be ‘desirable to avoid a situation in which an application would be rejected as inadmissible … if the applicant had never had a proper [national] remedy’.Footnote 70 For Judge Spielmann (and leaving aside the amendment to the criterion once Protocol 15 enters into force, namely the deletion of the phrase concerning the prior consideration by a domestic tribunal) this admissibility criterion enshrines ‘at least to a certain extent, an obligation to use the margin of appreciation’.Footnote 71 Elsewhere, the ECtHR's President opined that the elimination of the second safeguard post-Protocol 15 means that States considered ‘that the other safeguard [the ‘respect for human rights’ clause] was broad enough to guard against a denial of justice’.Footnote 72 There were also views expressed within the CDDH that the removal of the term ‘duly considered by a domestic tribunal’ ‘further emphasise[s] the subsidiary nature of the judicial protection offered by the’ Strasbourg Court, in that the latter henceforth will not need to assess whether the matter has been duly considered.Footnote 73
One could indeed stretch the subsidiarity principle that far and suggest that occasionally, and under specific safeguards (be they the prior examination by a domestic tribunal or the ‘respect for human rights’ clause), the ECtHR may consider a case on an alleged minor violation of the Convention inadmissible. It is submitted, nonetheless, that subsidiarity in the Convention is based on a number of fairly straightforward considerations: national authorities should ‘do their best’ to prevent violations, and/or provide effective remedies for redress in the first place.Footnote 74 The Committee of Ministers and the Court should provide guidance when this is requiredFootnote 75 (as known, the former is responsible for the implementation of decisions,Footnote 76 including the prevention of future violations on the same structural problem; while the latter can issue pilot-judgments, a point discussed below). This does not mean, though, that whenever a case involving violations of human rights has somehow ‘escaped’ the domestic legal order, the Court does not have a responsibility to intervene. One should therefore distinguish admissibility questions from the promotion of effective remedies at the national level, which is, indeed, an expression of subsidiarity. If all remaining admissibility conditions are satisfied, and assuming that a violation has indeed taken place and—subsequently—that a breach of the Convention would be diagnosed by the ECtHR, the fact that a petition eventually reaches the Court is admittedly evidence of the failure of the (national) system to provide redress. Subsidiarity in this case entails an examination of the case by the Court and simultaneously the promotion of effective domestic remedies at the national level, in order for such a violation (regardless of its level of severity) to be avoided in the future. Ultimately, subsidiarity does not entail the selective examination of otherwise admissible cases, even if they raise issues which are not of utmost significance.
It can further be argued that since the Convention guarantees minimum standards of protection, it appears incompatible with the ‘European philosophy of human rights protection’ to grant the Court the discretion not to examine cases where the applicant has not suffered a significant disadvantage.Footnote 77
V. ASSESSING THE MERITS DURING THE ADMISSIBILITY STAGE: A PROBLEMATIC METHODOLOGY?
The Explanatory Report was keen to underline that ‘[t]he wording of the new criterion is thus designed to avoid rejection of cases warranting an examination on the merits’.Footnote 78 And yet in the same Report one reads that the ‘new criterion may lead to certain cases being declared inadmissible which might have resulted in a judgment without it’.Footnote 79 These two sentences appear to be somewhat contradictory, but there is an additional clarification: ‘[i]ts main effect, however, is likely to be that it will in the longer term enable more rapid disposal of unmeritorious cases’.Footnote 80 The term ‘unmeritorious’, which means ‘not worth examining’, does not imply that there had been no violation. On the contrary, it implies that, although there might had been a violation, the Court may decide not to examine it, because the disadvantage suffered by the applicant was not ‘significant’. But does this not mean that the ECtHR will proceed with an assessment on the merits of the case (as described above) before deciding on the admissibility? How is it otherwise possible to assess the ‘significance’ of the disadvantage before examining the right in question, the facts of the given case, the conduct of the national authorities, the national legislation, and eventually the damage suffered, possibly—yet importantly—applying the proportionality test?
There is one exception to this method, or an additional ‘element’ to the testFootnote 81 of Article 35(3)(b): ‘the application will not be declared inadmissible if respect for human rights as defined in the Convention or the protocols thereto requires an examination on the merits’.Footnote 82 The purpose of this clause is not to discourage the Court from considering applications raising important issues of interpretation and application of the Convention, regardless of the right in question and the possibly trivial nature of the violation. Thus, the sentence would be better worded as follows: the application will not be declared inadmissible if respect for human rights renders the case meritorious.
In the context of the Convention machinery, assessment on the merits during the admissibility stage is a rather problematic methodology, particularly because human rights cases rejected as inadmissible for other reasonsFootnote 83 leave the human right question unaddressed. This article focuses on the ECHR only and does not make a general claim that admissibility and merits are or should be methodologically separated in the reasoning of other international or national courts and tribunals.Footnote 84
With regard to the ECHR, if the ECtHR states that the case is inadmissible under the significant disadvantage criterion, the general conclusion would be that the Court had undertaken an examination of the human rights question raised by the case and was somewhat unconvinced about the possible violation (or at least of the level of severity of that violation). Thus, such methodology eventually constitutes slippery and elusive judicial reasoning, possibly rendering the necessary ‘internal and external control’ of the ECtHR's work more difficult, and also threatening the principle of procedural fairness and, in the end, the ECtHR's legitimacy.Footnote 85
It is noteworthy that the existing case law concerning the new criterion already demonstrates an explicit recognition by the Court of this merger between admissibility and merits. Particularly when the question of proportionality is at stake, the Court (it seems) will decide to jointly examine admissibility and merits.Footnote 86 In Migalska v Poland, for example, the Court explained that
the alleged lack of significant disadvantage is inseparably linked with the Court's assessment of the proportionality of the measure complained of, in particular with the question whether, in consequence of the revocation of her pension, the applicant suffered an “excessive burden” for the purposes of Article 1 of Protocol No. 1 to the Convention. That being so the Government's argument [on the application of the ‘significant disadvantage’ criterion] would, in the Court's view, more appropriately be dealt with at the merits stage.Footnote 87
A number of reservations could be raised against this critique. First, it might be argued that this is not the first time that the Court requires a minimum level of severityFootnote 88 in order to find a violation of a specific right. One well-known example is the notion of torture or inhuman and degrading treatment or punishment under Article 3 ECHR (again, this assessment depends on the particular facts of the case: the duration of the treatment, the age, sex, or state of health of the victim, among others).Footnote 89 However, there is a stark difference. If the Court concludes that the required minimum level of severity under Article 3 has not been met, it will have still declared the case admissible and also have provided an assessment on the merits that the rights guaranteed by Article 3 ECHR had not been violated. The ECtHR may, of course, be criticized for not applying Article 3 convincingly or of failing to accurately interpret a provision granting an absolute right,Footnote 90 but, in any case, such an approach (a distinction between admissibility/merits) arguably provides legal certainty and offers a clearer methodology. Put simply: it is better to consider the minimum level of severity during the merits phase, rather than during the admissibility stage.
Another set of (no doubt accurate) objections might be that a form of prima facie control has always been inherent during the admissibility stage. The Commission did so under the old procedure before the adoption of Protocol 11. Also, when applying other admissibility criteria, the ECtHR has occasionally engaged in an assessment of merits. One example could be the famous Bankovic v Belgium and Others case,Footnote 91 where the Strasbourg Court identified a ‘lack of a jurisdictional link between the victims and the respondent states’,Footnote 92 thus rejecting the case on the basis of Articles 35(3) and 35(4) ECHR.Footnote 93
Article 35(3)(a) ECHR also obliges the Strasbourg Court to declare manifestly ill-founded applications inadmissible, and these constitute about 90 per cent of its workload.Footnote 94 Post-Protocol 14, single judges can do this, except for complaints concerning their own country.Footnote 95 The major problem related to this competence of single judges is the lack of sufficient reasoning behind their decisions—or in other words, obscurity.Footnote 96 The non-compliance of such practices with the principles of a fair trial and of openness is problematic since the ECtHR has condemned States on precisely these grounds.Footnote 97 The criterion of manifestly ill-founded applications ‘is not formal, but rather substantive in nature, to the extent that its application requires a prima facie assessment to be made of the merits of the case’.Footnote 98 Interestingly, the ECtHR's ‘Admissibility Guide’ classifies the two criteria (‘manifestly ill-founded’ and ‘significant disadvantage’) as inadmissibility review ‘based on the merits’.Footnote 99 Indeed, Article 35(3)(a) ECHR is a source of some confusion. At first sight, it appears that the Article is applied ‘if it is immediately obvious to the average reader that [the application] is far-fetched and lacks foundation’.Footnote 100 However, the Court's case law suggests that ‘the expression is to be construed more broadly, in terms of the final outcome of the case’.Footnote 101 Efficiency considerations apparently prompted the Court to interpret the provision in this way. Although the two criteria seem to have a close affinity, the discretion to consider the merits at the admissibility stage in the context of significant disadvantage stems from the Convention directly, while the discretion regarding ill-founded applications results from the existing interpretation of Article 35(3)(a) by the ECtHR.
With regard to ‘abusive petitions’, the Court's approach has generally been very cautious; the criterion will be applied only in exceptional circumstances.Footnote 102 Evidently, whenever the application is considered ‘manifestly vexatious or devoid of purpose’, particularly in cases where the Court's assessment centres on the ‘pettiness of the amount involved’ and therefore the damage suffered by the applicant,Footnote 103 it can also be claimed that the merits and admissibility cannot be dissociated. Again, such an approach stems from the ECtHR's interpretation of the provision and not from the Convention directly.
Under Article 37(1) ECHR the Court is able to strike out applications at the post-admissibility stage, but more interesting perhaps is the clause under the same Article stating that ‘the Court shall continue the examination of the application if respect for human rights … so requires’. This is an inversion of the new admissibility criterion: if such an issue of principle arises, the Strasbourg Court shall not strike out the case even if the applicant does not intend to pursue his/her application, the matter has been resolved or other reasons are in place which do not justify the examination of the case. This grants significant discretion to the Court given that, human rights issues of principle aside, it may need to proceed with an examination of the merits in order to identify if ‘any other reasons’ exist which point towards not examining the application on the merits.Footnote 104 In this regard, it should also be noted that according to Article 39(1) ECHR the Court has to ensure that friendly settlements are agreed ‘on the basis of respect for human rights’. Thus, ‘no friendly settlement can be reached without the consent of the Court’. However in practice, ‘it is rare for the Court not to endorse a settlement proposal’.Footnote 105
A third objection might be that the admissibility stage grants an international court the discretion to achieve broader ‘policy goals’, such as efficiency and effectiveness.Footnote 106 And yet even if ‘effectiveness considerations militate against regarding a hopeless minor case as admissible’, as Shany underlines, referring to the Convention and the ‘significant disadvantage’ criterion, ‘[s]uch exercise of judicial power would not … promote the court's normative aims and should therefore be resisted’.Footnote 107
It is therefore submitted that, while the separation of the merits from admissibility (particularly) in international adjudication is not a straightforward exercise, Protocol 14 introduces for the first time into the corpus of the Convention an explicit recognition of the Court's discretion to dismiss a case as inadmissible after an assessment of the merits—and it is here where the problem lies. This is the first time that the Court's discretion to do so stems from the Convention directly. Considerations relating to clarity and foreseeability of both the scope of the rights granted by the Convention and the ECtHR's practice/interpretation suggest that such an elusive methodology should be avoided in such a sensitive area of adjudication.
As an aside, the methodology of a supranational extrajudicial institution, the European Ombudsman, might be reflected upon (while acknowledging the fundamental ontological divergences between this extrajudicial EU entity and the Strasbourg Court).Footnote 108
VI. A CLASSIFICATION ON THE BASIS OF THE FINANCIAL DAMAGE SUFFERED?
Is it possible to consider this provision as an ‘ideological shift’, implying that ‘some rights are more important than others’, and, consequently, that certain victims deserve attention while others do not?Footnote 109 At first glance at least, the ‘respect for human rights’ clause does not seem to warrant such a concern. This is further supported by the Explanatory Report:
While the Court alone is competent to interpret the new admissibility requirement … its terms should ensure that rejection of cases requiring an examination on the merits is avoided. The latter will notably include cases which, notwithstanding their trivial nature, raise serious questions affecting the application or the interpretation of the Convention or important questions concerning national law.Footnote 110
This demonstrates that the purpose of the drafters was not to insert some type of classification of important or less important rights. If a case raises questions of interpretation or of doctrinal significance concerning any Convention right or the practice of national authorities, the Court will examine the case. When respondent States violate non-derogable rights under 15(2) ECHR,Footnote 111 the criterion will not apply.Footnote 112 One idea that was ‘floated’ when Protocol 14 was being drafted was that the Court might be empowered ‘to “pick and choose” the cases it wished to examine, using the “writ of certiorari” method followed by the United States Supreme Court’.Footnote 113 Had that suggestion been adopted, concerns of ‘arbitrariness – a drawback especially unwelcome in human rights matters’Footnote 114 could not have been avoided. Protocol 14, therefore, does not seem to go that far.
That said, one cannot but conclude that the Court will reject an application if the issue is trivial and does not raise important issues of interpretation or application/enforcement of Convention rights (including the Protocols). The crucial question is: what is the appropriate criterion (or set of criteria) to be applied by the Court in order to reach such a conclusion? The above discussion not only shows that the Court takes an ad hoc approach to the new criterion, but also a tendency to first consider whether there is any financial damage, always subject to the safeguard of ‘respect for human rights’.Footnote 115
As already noted, non-derogable rights are excluded from this: alleged violations of such rights do constitute a significant disadvantage. But leaving aside absolute rights, it is submitted that the result of the Court's adopting such an approach—even though the Convention and the Explanatory Report explicitly state otherwise—will inevitably result in some form of classification of the seriousness of the consequences of violation, and possibly, indirectly, some type of classification of rights.
The classification of rights is not unknown to international law. The prohibitions of torture, slavery and racial discrimination are generally considered to be jus cogens norms,Footnote 116 as has been recognized by the Strasbourg Court.Footnote 117 Furthermore, one can claim that in cases of conflict between non-jus cogens rights, the Court prioritizes between them on the basis of the proportionality principle.Footnote 118 This, however, does not create a general and straightforward classification of rights per se, as the Court adjudicates and balances between them on an ad hoc basis.Footnote 119
Returning to its interpretation of the new admissibility criterion, if the Court does not primarily rely on a ‘financial damages approach’ (as this article argues it will), it may of course adopt another. But even this may not mean that the eventual classification of the seriousness of the consequences of violations will be avoided. If such seriousness is only rarely attributed to specific rights,Footnote 120 an indirect classification of rights might not be avoided in practice. It is, of course, premature to provide definitive conclusions regarding the use of the criterion by single judges.
It should also be noted that suffering significant disadvantage presupposes (quite evidently) some sort of ‘damage’—financial or otherwise—and the need for redress or a remedy. This brings us to the broader issue of remedies under human rights law, and particularly non-monetary remedies. As Shelton explains, for various reasons non-monetary remedies ‘may be appropriate or necessary in human rights cases’:
First, the government may not be responsive to less intrusive measures, such as an award of damages. Second, it may be impossible to estimate damages because of uncertainty or because what was lost is unique. Damages are especially inadequate when the victim can show no economic loss from the violation of her right and where the violation causes irreparable injury. Also, the violations may be ongoing or likely to be repeated and repetition is neither legally nor morally acceptable. With damage awards, the government can continue to violate rights as long as it is willing to pay.Footnote 121
The Strasbourg Court has only recently attempted to award applicants non-monetary remedies. Echoing the subsidiarity principle, frequently it leaves the means of implementation of judgments to the respondents.Footnote 122 Perhaps the most well-known example of a different approach is the pilot judgment procedure, enabling the Court to remedy systemic repetitive violations.Footnote 123 Under Article 46 ECHR (also an expression of subsidiarity in enforcement) the contracting parties undertake to abide by the final judgment of the Court and the Committee of Ministers will supervise its enforcement. It can certainly be argued that the pilot-judgment procedure, first, verifies a proactive approach on the part of the Court and, second, is evidence of its constitutionalist function.Footnote 124
The emerging question is whether the exceptional use of non-monetary measures by the Court is a convincing reason to justify primarily relying at the admissibility stage on the calculation of financial damages. The answer is no. The award of monetary remedies stems from the subsidiarity principle. As already explained, however, the same principle is the basis of the Court's obligation to examine a case which has not been duly dealt with within the domestic legal/judicial order. A monetary award does not put an end to the issue of implementation as it then falls to the State and the Committee to ensure compliance. A decision not to examine an application undermines the applicant's final opportunity to resolve the human rights issue in question.
It can only be hoped, of course, that the Court will apply the ‘respect for human rights’ test as broadly as possible and refrain from engaging with financial calculations before exercising its full jurisdiction. It is doubtful whether the Court will apply the significant disadvantage admissibility test vis-à-vis political rights, particularly with regard to the right to vote and stand for elections under Article 3 of Protocol 1, a highly controversial area of adjudication.Footnote 125
Lastly, questions of relative importance or the classification of ECHR rights prompt reflections on a number of other issues, which cannot be discussed extensively here. For example, the margin of appreciation doctrineFootnote 126 is evidence of the Court's unwillingness to prescribe global standards of human rights protection. Some may criticize such an approach with regard to the protection of minority rights.Footnote 127 Others will point out that the tension between universality and subsidiarity is inherent in the Convention.Footnote 128 One can agree or disagree with specific applications of the margin of appreciation doctrine, but Mahoney is probably right when claiming that, generally, ‘the Convention norm sets a universal minimum standard which nonetheless incorporates recourse to a principle of subsidiarity, in that it allows some scope, albeit not unlimited, for properly functioning democracies to choose different solutions adapted to their different and evolving societies’.Footnote 129 For some, it is only a matter of time before the ECtHR enters the ‘age of subsidiarity’, reflecting calls for ‘increased diversity’ in the protection of human rights.Footnote 130
VII. ALTERNATIVE APPROACHES TO REDUCE THE COURT'S WORKLOAD
The Strasbourg Court and its Registry have recently given optimistic signs regarding the Court's workload crisis. The 2014 Annual Report emphasized the ‘impressive decline’ in the number of pending cases and the success of the new working methods of the Court.Footnote 131 The number of 70,000 pending cases is certainly encouraging when compared to previous years, but discussions on reforming the Court (and on its effectiveness) are far from concluded. This article argues that the ECtHR should seriously consider alternative proposals for the further reduction in its workload.
Dzehtsiarou and Greene argue, for example, that it could be possible for the Grand Chamber to hear constitutionalist cases, while leaving adjudicatory cases to the Chambers; this would enable the Court not to ‘leave any complaints unanswered’.Footnote 132 It should be remembered that when the—then—European Court of Justice faced a significant increase in its workload, a decision was made to establish a Court of First Instance (now called the ‘General Court’).Footnote 133 Likewise, the EU Treaties enable the formation of ‘specialised courts’,Footnote 134 the Civil Service Tribunal being the only specialized court created to date.Footnote 135 The stark difference between the ECHR machinery and the EU legal order is, of course, the very limited locus standi of individuals before the EU courts.Footnote 136 The creation of a first-tier court within the ECHR system of protection along the lines of the EU model would certainly require additional resources. Despite the various challenges, nothing prevents the ECtHR from implementing a plan for more effective and efficient resource allocation.
Moreover, Lord Woolf's Report recommended the establishment of satellite offices of the Registry in countries producing a high number of inadmissible applications.Footnote 137 In addition, Helfer stressed that the Council of Europe could engage more actively with the training of national governments and judges, and could also assist National Human Rights Institutions in providing reports and assisting the Committee with the implementation of the Court's judgments.Footnote 138 Proposals by a Group of Wise PersonsFootnote 139 in 2006 ‘envisaged a more active role for the … Commissioner for Human Rights’; the latter could work closely with national extrajudicial institutions. The Commissioner, in cooperation with the Registry and the national authorities, could also ‘encourage the use of mediation to achieve friendly settlements of applications to the Court’.Footnote 140 Of paramount importance is also ‘the need for increased dissemination of the jurisprudence of the Court’.Footnote 141
The adoption of Protocol 16 ECHR provides another opportunity for dialogue between domestic courts and Strasbourg. As Amos asserts, dialogue is crucial for the legitimacy of both the domestic and Strasbourg decisions, while granting domestic courts scope for norm creation, but also scope to influence the outcome of the ECtHR's findings.Footnote 142 Protocol 16 will enable the highest domestic courts and tribunals in a pending case to ‘request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms’ granted by the ECHR and its Protocols.Footnote 143 Advisory opinions will be published, but will not be binding.Footnote 144 Does Protocol 16 ECHR provide an opportunity to reduce the number of pending applications? In principle, one can only hope that further guidance to highest domestic courts could progressively lead to further instances where appropriate redress and/or effective remedies within the domestic legal order would be guaranteed. Concerns regarding the additional burden upon the CourtFootnote 145 should be addressed by the ECtHR, but the potential impact of advisory opinions remains, of course, to be seen.
The above discussion demonstrates that a plethora of proposals to reduce the Court's workload could have been examined before attempting to restrict the right to individual petition. Some of these proposals require additional resources—judges sitting at first instance, resource provision for training or appropriate facilities across States for the independent operation of ‘satellite offices’. It is difficult, nonetheless, to implement long-term and effective change without cost. Ensuring the viability of the Convention machinery is a compelling reason to consider the above recommendations.
VIII. CONCLUDING REMARKS
This article has advanced four lines of criticism vis-à-vis the ‘significant disadvantage’ admissibility criterion. First, it argued that it undermines direct access to justice at the international level. Second, the criterion evidently affects the right to individual petition and is based on a misunderstanding of the subsidiarity principle. The Court has so far used the criterion very cautiously (this being evidence of the tensions within the Strasbourg Court as to the suitability of the provision), but it is only recently that single judges were empowered to consider applications in light of Article 35(3)(b) ECHR. Third, the criterion inevitably encourages the Court to consider the merits during the admissibility stage; such a practice, even though implicitly found in the use and interpretation of other admissibility criteria by the Court, is certainly problematic from a methodological point of view, particularly taking into account the Court's mission to dissolve doubts on the interpretation and scope of human rights granted by the Convention. Fourth, although, in principle, the wording of the provision does not give such an impression, it can be argued that by classifying the seriousness (in financial or other terms) of the violation an indirect classification of rights cannot really be avoided.
The debate on the new criterion reveals important questions of principle that might not have been considered by the drafters of that provision. The legitimacy question currently surrounding the Court suggests that the Strasbourg judges, the contracting parties, academic commentators and civil society organizations are still divided with regard to at least two dilemmas concerning the future operation of the Court. First, there are those who favour a minimalist approach and consider anything beyond to be judicial activism, as opposed to those who consider that the Court's mission is to develop the human rights standards granted by the ECHR. Thus, Nicol rightly claims that the ‘original intent’ debate is still relevant, because it underlines an ongoing and unresolved tension.Footnote 146 Second, there are those who believe that, pragmatically, the Court has to focus on its constitutionalist mission, as opposed to those maintaining that the right to individual petition cannot be sacrificed, precisely because it is indispensable in order to safeguard the Court's legitimacy.
The adoption and application of Article 35(3)(b) demonstrates that a number of questions of principle are related to the two dilemmas mentioned above. Does the meaning of subsidiarity within the Convention imply that the Strasbourg Court should refrain from considering specific applications, or does the principle entail that the Court's role as a tribunal of last resort should be safeguarded? Is the ECHR a system which exemplifies access to justice at the international level based on a ground-breaking model of supranational adjudication, or is it a system which enables the Court to develop standards, the implementation of which are left to the domestic order? Is the academic community satisfied by the Court's merging of merits and admissibility, or does the new criterion provide an opportunity to reflect upon the Court's methodology, bearing in mind the need for legal certainty in so sensitive an area of adjudication as human rights? Is the ECtHR's practice of awarding non-monetary damages in only exceptional cases a convincing reason for it to disregard applications which are of limited significance on the basis of a calculation of the financial damage that has been suffered by the applicant?
To be fair to the Court, it has had the challenging task of reducing the extremely high number of pending cases. The time when the Court was a strong proponent of an unqualified right to individual applicationFootnote 147 is gone. Nonetheless, the discussion on the Court's reform has taken place on an ad hoc basis. Compromises to minimize the considerably divergent interests among the actors within the Convention machinery were sought, which is not at all unusual for an international treaty. Indeed, one can too easily point the finger at the Court if one strongly disagrees with a specific amendment to the admissibility criteria. One can too easily focus on highly non-compliant States, if one believes that efforts should be geared towards reducing the number of applications stemming from these contracting States. One can too easily conclude that non-governmental organizations should demonstrate a higher degree of flexibility and pragmatism when it comes to proposals for reform of the Convention machinery. Clearly, there are no straightforward and unanimously accepted viable solutions to the Court's reform.
Still, a number of interesting proposals should be explored in more detail before limiting the scope of individual petition. These have been discussed above and there is no need to repeat them here. This article argues that serious consideration should be given to questions of principle concerning the Convention and the role of the Court. The ‘docket crisis’ (and the subsequent debates on the Court's reform) ‘exposed and accelerated’ an ‘identity’ crisis for the Strasbourg Court.Footnote 148 Against this background, the number of reforms attempted since 1998 are a worrying sign, since an international court ‘should be allowed to work quietly and without constant turbulence’; it was therefore somewhat ironically suggested by Caflisch that a ‘reform of the reform of the reform’ would be required.Footnote 149 Likewise, Greer observed that ‘the Council of Europe tends to think bureaucratically rather than conceptually and strategically’.Footnote 150
However attractive as an option, it is not always possible to satisfy all the actors involved within the ECHR. How could a strong proponent of unqualified parliamentary sovereignty in the UK accept that the Strasbourg Court has the right to impose obligations upon States concerning prisoners’ right to vote? How easy is it for those working within the Council of Europe, in regular contact with the Strasbourg Judges, to avoid the conclusion that perhaps the time has come for the Court to consider more ‘serious’ applications, particularly if they might have regularly registered numerous applications of limited constitutional significance? Ultimately, such a discussion needs to be conducted in the open, in order for the resulting dilemmas to be properly identified and addressed. The outcomes of the recent High-level ConferencesFootnote 151 demonstrate that their organizers and participants have tried seriously to engage in such debates, but they also show that the underlying tensions within the Convention remain intact.
Article 35(3)(b) ECHR provides an opportunity to reflect and decide upon these issues. It is often said that one of the ways to ensure legitimacy is through openness and discussion (deliberation). The new criterion could be used as an opportunity to conclusively address questions related to the Court's legitimacy, including the Court's precise role and function within the Convention system.
