November 10, 2020
By Justin M. Loveland
The European Court of Human Rights has made important contributions to the development of international human rights jurisprudence, influencing not only the domestic jurisprudence of its member European states but the practices of states outside the European system, other regional human rights systems, and international law more broadly. This well-deserved influence is in danger, however, as the Court’s continued practice of issuing bare admissibility decisions in single-judge formation undercuts its leadership role in articulating human rights law, denies relief to individuals who may have a legitimate human rights claim, and threatens to diminish the protective role of both the Court and UN treaty bodies at a time when infringements of a broad range of human rights are on the increase.
A practice that has been critiqued over the past decade for its summary nature and lack of reasoning, the Strasbourg Court has, since the release of Protocol No. 14 in 2010, been sitting in single-judge formation to issue admissibility decisions as a means of tackling its then-crippling backlog of cases. In such a decision, one judge would pen a letter of a few paragraphs summarily rejecting the applicant’s claims but not necessarily expounding on the reasons for the decision. The theory is that, done on a large scale, this has a filtering effect that cuts down on the backlog. Though in 2017 the Court tweaked its procedure—from issuing a decision-letter rejection to issuing an actual decision supposedly referencing the specific grounds for inadmissibility—it continues to issue single-judge rejections that are threadbare, with little to no reasoning included.
This single-judge rejection practice has worrying implications for justice. It has raised, and continues to raise, serious concerns about the Court’s effectiveness in the investigation and adjudication of honest, often well-founded complaints of human rights violations. Even more concerning, when a rejected complaint is subsequently submitted to other supranational bodies such as the UN treaty body system, violations have sometimes been found and measures ordered (see the Yaker case below). Questions of individual judge/rapporteur competence, the aptness of comparing the ECtHR and UN treaty bodies, and procedural differences aside, this discrepancy suggests that ECtHR judges may be speeding through cases without giving them proper consideration, with an “aura of arbitrariness,” calling into question fundamental access to justice and, by extension, the institutional legitimacy of both the Court and the UN.
1. Denial of justice from the Court:
Regardless of motive, the ECtHR single-judge rejection practice is problematic for several reasons. First, an intentionally limited or cursory review directly denies survivors and valid claimants competent and thorough judicial consideration, thus chilling their basic due process rights and access to justice. In effect, this renders hollow the protections sought and the Court’s institutional ability to provide them.
2. Denial of justice from UN treaty bodies:
Second, the practice indirectly denies survivors justice by closing off other avenues of redress. The admissibility criteria of many international and regional courts and treaty bodies bar communications regarding the same subject-matter that is being reviewed by another international body (see, e.g., Optional Protocol to the ICCPR, art. 5(2)(a)). The UN Committee against Torture, for instance, goes even further in restricting complaints to matters that “[have] not been, and [are] not being, examined under another procedure of international investigation or settlement” (CAT art. 22(4)(a), emphasis added).
Thus, if the applicant first applies to the European Court and is rejected, that judgment often renders inadmissible concurrent or subsequent communications to UN treaty bodies. Survivors of alleged human rights violations, then, having been denied recourse to the ECtHR, would not be able to apply to the treaty body system and would see their avenues of redress greatly limited or outright cut off. Especially for applicants who have had meritorious complaints deemed inadmissible, this can contribute to the erosion, or perception of erosion, of the treaty body system’s efficiency and legitimacy as well.
The UN treaty bodies have noticed these effects and have tried to adapt by relaxing certain admissibility rules in order to allow consideration of meritorious communications. For instance, even bodies with stricter admissibility requirements, such as CAT above, have begun to carve out an exception for international opinions that were summary or very short and clearly not fully reasoned through (see the CAT cases of J.M. and J.I. below). However, this is an informal and non-sustainable solution to the underlying problem.
3. Damage to the Court’s legitimacy
The first two implications snowball into a foreseeable third: the single-judge rejection practice, done en masse, weakens the Court’s legitimacy in the eyes of both those impacted in the region and onlookers around the world, including other regional courts, by sending an austere message of prioritising a warped version of judicial efficiency at the expense of justice.
As an admittedly extreme though nevertheless practical consideration, attorneys may see this practice as a risk to their clients’ cases and turn their priorities elsewhere—or else perhaps even one day face a malpractice claim—and the Court may see Europeans’ confidence in the system shaken. Other courts who routinely look to the ECtHR as a leader may for their part limit the deference given to even its more respected opinions, thus weakening the institution’s renown and effectiveness. Or worse, onlooker institutions may adopt the practice and start issuing reduced, summary opinions of their own. We cannot risk either case happening.
Unfortunately, this is not simply theoretical; a cursory review reveals many cases the European Court ruled inadmissible in bare, single-judge decisions that were actually accepted by various UN treaty bodies. It should be noted that while the Court and UN treaty bodies have different admissibility criteria and sometimes apply different standards or principles of interpretation, and that some measure of fragmentation or “smart integration” of human rights law is worth maintaining, the bodies generally try to align their jurisprudence.
However, in two almost mirror-image CAT cases published in May 2019, where the complainants alleged a risk of extradition to Rwanda in contravention of The Netherlands’ non-refoulement obligations, the ECtHR had previously, in single-judge formation, issued two-sentence-long decisions in each case, finding the claims inadmissible under Articles 34 and 35 of the European Convention on Human Rights but not providing the specific reasons why. (See J.M. v. The Netherlands, CAT Comm. No. 768/2016; J.I. v. The Netherlands, CAT Comm. No. 771/2016.) This led to the state respondent conjecturing awkwardly before CAT on the possible grounds for the Court’s decision, listing several of the provisions under Articles 34 and 35 as contenders.
The Committee nevertheless found the cases admissible, noting that the European Court’s lack of reasoning did “not allow the Committee to verify the extent to which the Court examined the complainant’s application, including whether it conducted a thorough analysis…” (common para. 9.1 of both cases). That is, regardless of the differing admissibility criteria or fragmented approaches to human rights law between the Court and UN, single-judge decisions such as these do not provide a well-reasoned basis under any criteria for the rejection given. By rationalising their work in this way, the treaty bodies have thus tried to overcome the admissibility effects of scant single-judge decisions from the ECtHR.
Though CAT ultimately did not find violations in the above two cases, other treaty bodies have in other contexts, showing some claims rejected by the Strasbourg Court to have had merit. For instance, in the case of Sonia Yaker v. France, CCPR Comm. No. 2747/2016, a niqab-wearing Muslim was stopped, prosecuted, and convicted of wearing a garment to conceal her face in public. After being rejected on technical grounds by the French courts, she challenged the conviction at the ECtHR, which, sitting in single-judge formation, deemed the complaint inadmissible. Yaker then submitted a communication to the UN Human Rights Committee, which not only declared the complaint admissible, noting the “succinct” nature of the ECtHR opinion in which “no argument or clarification regarding the admissibility decision had apparently been provided to the author to justify a rejection” (para. 6.2), but also found violations of the rights to freedom of thought, conscience, and religion and to equal protection of the law.
These are just a few examples. Based on the author’s own experiences working with the CAT Secretariat and Petitions Section of OHCHR, the practice is ongoing and complaints are still being accepted by treaty bodies that have been otherwise rejected by the European Court.
The European Court must take immediate measures to stop the single-judge rejection practice. The Court should focus on dealing with its backlog in a constructive way that still gives the consideration these otherwise meritorious claims are due, and accordingly the justice these applicants deserve, rather than applying a surface-level bandage to a much deeper wound. If the Strasbourg Court is ill-equipped to adjudicate fairly the tens of thousands of applications in its backlog, perhaps other creative solutions could be conceptualised in which the UN treaty body system, national courts applying the ECHR, states supplying emergency resources or ad hoc judges, or yet other bodies as has been recommended—see, e.g.,Prof. Koen Lemmens’s Protocol 16 to the ECHR article—could help out.
In no case, however, should individuals with valid claims suffer the further injustice of a scant opinion that then injures them twice by limiting their prospects elsewhere. If yet none of the above recommendations work, as some have been tried, it therefore nevertheless remains the Court’s responsibility to honestly review the cases before it, even if such takes many more years.
Every court system in the world has to deal with backlogs at some point in time, and each system’s response to this inescapable reality bears keenly on that system’s legitimacy. The ECtHR’s current response sends a fundamentally disappointing message to survivors and claimants seeking rightful remedies under otherwise valid claims.
For applicants and their lawyers, the response risks alienating valid claims, as many will reconsider the likelihood of receiving justice from the Court, even if there is no clear viable alternative. To the international community as a whole, the response communicates the unsettling message that the Court may no longer be as reliable a protector of fundamental human rights. Rather than face this disturbing potential, the Court should maintain its respected image by discontinuing the practice of issuing intentionally summary opinions and, hand-in-hand with its European member states, find more innovative and profound solutions to tackling its backlog.
This year the world’s oldest regional human rights tribunal turned 70. While celebrating the European Court for its well-deserved achievements, we should nevertheless not let our guard down in forever demanding the fair administration of justice for survivors and communities.
Justin M. Loveland:
Justin Loveland is a freelance legal consultant in public international law, transitional justice, and international human rights, currently serving as Senior Legal Consultant to the Truth, Reconciliation and National Unity Commission of Seychelles. He has researched diverse issues in international law, focusing on complex themes in transitional justice and international accountability, and has worked in various capacities at the Inter-American Court of Human Rights, UN Committee against Torture, and many NGOs such as Landesa, International Refugee Assistance Project, and ACLU. He holds a B.A. (French and Spanish) from Western Washington University and J.D. (magna cum laude) from Seattle University School of Law.