May 28, 2014
This guest post was written by Helena De Vylder. Helena is a Ph.D. Researcher at the Human Rights Centre of Ghent University. Her research concerns admissibility criteria in regional human rights systems.
Apart from the new admissibility requirement – significant disadvantage –, the 14th Protocol contains a number of procedural changes. The competences of chambers and committees have been changed and single judge-formations (assisted by a non-judicial rapporteur) were created and given the competence to take final decisions regarding the admissibility of cases where such a decision can be taken without further examination.
The yearly statistics available on the ECHR-website (Annual Report 2013) suggest that the 14th Protocol did a wonderful job, as regards the speeding up of procedures. The backlog of the ECtHR has decreased enormously in the latest years and the renewed efficiency of the Court thanks to the filtering-mechanisms has been applauded. The single judge-formations contribute massively in this regard. However, the commented case sheds light on the other side of the decisions issued by single judges. These decisions are not published, but we had the opportunity to access one of them when an applicant who had obtained an unsatisfactory decision contacted the Strasbourg Observers.
Mr Stensholt filed a complaint with the European Court of Human Rights on December 10th, 2012. The case originates in a contractual dispute with the builder of the applicant’s house dating back to 2005. The builder initiated the complaint domestically in 2008 and the applicant took his case up to the Norwegian Supreme Court, which delivered final judgment in 2012. The application for the European Court of Human Rights is based on a number of procedural defects before the Norwegian City Court, High Court and Supreme Court, allegedly constituting violations of Article 6(1) ECHR.
After a decennium of proceedings, it was a great disappointment for Mr Stensholt, to receive a letter declaring his case inadmissible. As a reason, the Court literally only states:
“In the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court found that the admissibility criteria set out in Articles 34 and 35 of the Convention have not been met.”
Moreover, the applicant is informed that no more details are available, or will ever be available:
“This decision is final. It is not subject to an appeal either to the Grand Chamber or to any other body. The Registry is unable to provide you with any further details concerning the Single Judge’s decision. Consequently, you will not receive any further correspondence from the Court in connection with this case. In accordance with the Court’s instructions, the file will be destroyed on year after the date of the Single Judge’s decision.”
The aberrant lack of reasons does not just withhold the applicant from knowing the exact reason for the inadmissibility, it equally prevents him from having any insight in the fairness of the decision-making process. The legitimacy of the Court’s decision is at stake. The absence of appeal, and the quick destruction of the files, even create the appearance that the judge wants to cover up an unwillingness to investigate the issue.
Moreover, even though appeal is not possible after a negative admissibility decision, article 37(2) ECHR provides for the Court to restore a case to its list if it considers that the circumstances justify such a course. Where an inadmissibility-decision is based on an administrative error, for example, the Court will restore the case to its list. (ECtHR, Golmann and Szénàsky v. Hungary; ECtHR, Noé et. al. v. Hungary) The applicant has been deprived of this opportunity due to the absence of any reasoning.
Neither Articles 26 and 27 of the ECHR, nor Rule 52A of the Rules of Court or the explanatory report to Protocol 14, require the Court to give reasons for inadmissibility decision issued by single judges. However, Article 45 imposes a general obligation on the Court to give reason for its judgments and decisions. The single judges’ practice not to give any reasons, clearly violates this provision. Moreover, one could argue that this requirement lies at the heart of the Convention system as a whole.
The Court imposes strict standards upon its member states as regards the motivation of judgments in both civil and criminal cases. The right to a fair and public hearing in Article 6(1) ECHR includes the duty for the domestic courts ‘to indicate with sufficient clarity the grounds on which they base their decision’. (ECtHR, Karyagin, Matveyev and Korolev v. Russia; ECtHR, Hirvisaari v. Finland) It must be clear from the decision that the essential issues of the case have been addressed. (ECtHR, Boldea v. Romania) One could ask himself how the Court can require the member states to provide reasons, while at the same time not living up to the same standards.
Moreover, procedural justice is at stake. As regards the reasoning of domestic proceedings, the Court pays attention to the requirements of procedural justice: ‘The accused’s understanding of his conviction stems primarily from the reasons given in judicial decisions. In such cases, the national courts must indicate with sufficient clarity the grounds on which they base their decisions. (…) Reasoned decisions also serve the purpose of demonstrating to the parties that they have been heard, thereby contributing to a more willing acceptance of the decision on their part.’(ECtHR, Taxquet v. Belgium) The same argument could also be made with regard to the Court’s own proceedings. Brems and Lavrysen rightly emphasize the need to address procedural justice here also: “the Court should be a champion of procedural justice in its own proceedings and judgments. The Court should deliver procedural justice in order to improve applicants’ satisfaction and self-worth and to gain compliance and strengthen its legitimacy. This is all the more important because one can presume that the legitimacy of the Court—the most visible human rights actor in Europe—is inextricably linked to the legitimacy of human rights in Europe.” Sadly, in casu the single judge fails to pay attention to the requirements of procedural justice, thereby undermining the legitimacy of his decision and the Court as a whole.
The argument that is often put forward for rejecting of a complaint by way of a standardized letter without concrete reasons, refers to the high number of cases and limited time to examine all of them. Single judges indeed treat many cases a day, therefore administrative duties should be as low as possible, to create more time for a thorough examination of the matter. However, as the case has to be examined, and the letters need to be sent anyway, a requirement to state which admissibility condition has not been met and the brief reasons therefore, cannot be considered to impose a serious burden on the Court.
In conclusion, while it is true that, in absolute number, the Court has created more efficiency thanks to the filtering capacity of the single judges, this cannot justify the lack of reasoning in individual decisions. It is a dangerous evolution that a judge can take decisions unmotivated, creating an aura of arbitrariness, which affects the legitimacy of the Court as a whole. Moreover, this deprives the applicant from the possibility to ask the Court to restore the case to its list. Finally, the perception of procedural justice is in danger. Luckily, I am convinced, that including reasons in the letters does not mean a huge administrative hassle for the Court, and does thus not affect its efficiency.
 In the first years after the entry into force of Protocol 14, the letter sent to the applicant stated the reasons for the inadmissibility very briefly. (P. Leach, Taking a case to the European Court of Human Rights, (Oxford: Oxford University Press, 2011) 41) Nowadays, the letters do not provide any reasons at all anymore.
I have clear indication that single judge inadmissibility decisions not only by their nature undermine the courts legitimacy, but such decisions are sent out as fake judgements, which are not individually signed by a judge.
I’m a citizen of Germany owning a business in Ukraine and are subjected to non-legal actions by Ukrainian state organs, seemingly on behalf of competition linked to Ukrainian politicians.
Some of the cases in Ukrainian courts are violating article 6 of the Convention and I have filed complaints to the ECtHR. Even though these complaints are well-founded and backed by proofs, in all cases I received completely unfounded inaccessibility decisions.
In two cases (which are linked, since they resulted out of one application in the Ukrainian court) regarding actions of the prosecutors office I received inaccessibility decisions, in which the “signature” is not only absolutely identical, but is also at the exactly same location of the decision. If two documents are signed individually, it is almost impossible that an absolutely identical signature is located at exactly the same location. This leads me to the conclusion that it is not an individual signature on an individual decision, but an automatically placed electronic copy.
But if the judge does not even spend the time to sign a decision, what should give confirmation that he analysed the circumstances of the case?
The effect of such falsified decisions is that they give the signal “There is no violation”, thus stipulating the court systems of the member states to further violate their tasks regarding fair trials. If there are not enough ressources to decide all the cases, the ressources need to be increased, not the violations to be tolerated.
The ECtHR is not fulfilling any of the demands it puts to local courts.
I’m willing to supply copies of the “decisions” as well as complaint documents for academic research, trying to break the practice of the ECtHR to hide it’s violations by keeping the decisions closed and inaccessibly to society.