January 18, 2022
By Toby Collis
Should the European Court of Human Rights (‘ECtHR’ or ‘the Court’) dispose of a complaint by resorting to judicial policy reasoning to prevent judicial overload? A recent decision of the Court – Turan and Others v Turkey – handed down on 23 November 2021, brings this issue into sharp focus, not due to what the Court found by way of violations, but by what it explicitly chose not to find. It did so openly and explicitly for reasons of pragmatism, particularly to avoid judicial overload. Was it right to do so? And, even if not supported by principle, was this the only real option available to the Court? To address these questions, this piece first outlines the opinion of the majority, but more critically sets out in detail the robust and well-reasoned minority opinions that side with the majority only through gritted teeth. Like the minority opinions, I concede that the decision based on judicial policy was, on balance, one of the few options left to it, but suggest that only broader systemic reforms can adequately address this issue of judicial overload by repetitive applications.
The case arose out of the arrest and pre-trial detention of judges and prosecutors in Turkey in the aftermath of the attempted coup of 15 July 2016. These detentions – as well as thousands of others – led to a veritable flood of applications to the Court. The Court, in this case, joined 427 applications. This context – the sheer number of applicants both in this case and, more broadly, concerning post-coup arrest and pre-trial detentions – is highly relevant.
The applicants, who were all judges or prosecutors at different types or levels of the domestic courts, were arrested and placed in pre-trial detention under different legislative regimes, depending on whether they were (i) ordinary judges and prosecutors, or (ii) members of the Court of Cassation and Supreme Administrative Court. Despite the different regimes, the justification for detention provided by authorities was the same: that the applicants were discovered in flagrante dilicto (i.e. during the act of wrongdoing). As to what wrongdoing they were accused of, domestic courts have made various interpretations, but essentially they relate to continuing offences of membership of the FETÖ/PDY organisation (alleged to be behind the coup), which was a criminal offence, or by strained reasoning that they were part (and continued to be part) of the coup attempt itself by virtue of this alleged (and unproved) membership.
The Court found that, whist the applicants were arrested and deprived of liberty under procedures prescribed by law, the domestic interpretation of the notion of in flagrante dilicto was unlawful, as it was unreasonable and breached the principles of legal certainty, thus not enjoying the ‘quality of law’ required by Article 5(1) of the Convention. This violation of Article 5(1) was unsurprising, given that the Court had already found identical violations in previous Turkish cases (Bas v Turkey; Alparslan Altan v Turkey).
However, the remarkable aspect of the decision concerns further complaints made by various applicants under other sub-paragraphs of Article 5. In response to such complaints (at paragraph 98, which, due to its importance will be repeated in full):
It is this paragraph, and the later operative provision that ‘there is no need’ therefore to examine the applicants’ remaining complaints under Article 5, that caused consternation from the concurring and partly dissenting judgments.
Leaving aside the partly concurring opinion of the Turkish Judge Yüksel (which relates to a disagreement on the lawfulness of the arrests and detention), the judgment contains two important minority opinions. The first is a concurring opinion by the Finnish Judge Koskelo, joined by Judge Ranzoni, and the second is a (particularly lengthy) partly dissenting opinion by the Lithuanian Judge Kūris, who dissented on the operative provision that there was no need to examine the further complaints. The two opinions cover essentially the same territory, namely whether this disposal of the complaints is comparable to other situations where the Court does not find violations (spoiler alert: it isn’t), and, if not, whether it was nevertheless justifiable (spoiler alert: it was). (They also cover other more minor issues, but these will not be considered here.)
As outlined by the minority opinions, this case was not analogous to other situations where the Court finds no Convention violations, including under the admissibility criteria (as the complaints were found admissible). It was also not analogous to the pilot judgment procedure, where one individual case is selected for review of systemic and structural violations underpinning it, and other cases are adjourned pending implementation of general measures to address the underlying issue. In the present instance, this case was not a pilot judgment. Moreover, Judge Koskelo found that there was no further domestic action that could have resolved the Article 5 issues – that is, a pilot judgment could not, in any event, have resolved the matter.
Nor was this case like those situations where the Court finds violation of some complained Articles of the Convention, but not others. These include:
1. Cases where there is factual overlap between interrelated complaints, such that the Court need not re-examine the case from different angles. In these instances, it is jurisprudentially defensible (although from a practitioner’s standpoint, extremely disappointing) that the Court may find ‘no need to examine’ the overlapping claim. Both minority opinions found that in the case at hand there could not have been one of these overlapping situations, given that the other Article 5 complaints were ‘at the very core of one of the core rights’.
2. Politically sensitive cases where the Court finds no need to examine Article 18 complaints, despite evidence pointing towards a ’hidden agenda’ behind the violations. This was not relevant for the given case, given no Article 18 complaints were made.
3. Cases where the Court decides not to examine certain violations, without giving satisfactory reasoning or a principled justification for doing so, including the Câmpeanu formula that the Court will only examine the ‘main’ legal questions. This is not the case in Turan, as clearly the Court did give its reasoning, whether one agrees with it or not.
The closest this situation could be related to, and which the Court cites as supporting precedent for its decision to dispose of the complaints, is the 2017 case Burmych and Others v Ukraine (helpfully explained and analysed on this blog here and here), in which the Court struck out 12,148 repetitive cases of Ukraine’s failure to enforce final judgments. The similarity between the cases is that the Court made its decision based on pragmatism – the Court in Burmych holding that to continue to decide these cases would ‘affect the Court’s ability to fulfil its mission […] in relation to other meritorious applications’ (para 150) and ‘would place a significant burden on its own resources’ (para 174). However, as noted by Judge Kūris, the situations are not analogous in outcome: In Burmych, the cases were struck out pending continuing (albeit ineffective) supervision by the Committee of Ministers as a result of the earlier pilot judgment in Ivanov. Thus in Burmych there was some potential prospect of redress. In the present case, the non-Art 5(1) complaints will never be addressed (although as conceded by Judge Kūris, unlike in Burmych, the present case offers limited actual redress due to the finding of an Article 5(1) violation and an award of just satisfaction). The only similarities between the cases, in Judge Kūris’ words are that ‘the Court has adopted it also under the duress of reality, in which it has been left with no other choice, if the long-term effectiveness of the Convention machinery is to be ensured.’
Given that this situation is therefore sui generis, what then swayed the minority opinions to side with the majority? For Judge Koskelo, it was for reasons of pragmatism: that given the limits of the Court to process these claims, it is the only real option available to it. She states:
Judge Kūris undertook a much more nuanced and soul-searching analysis. He took as his starting position the principled position that in an ideal world, the Court should not substitute legal reasoning with judicial policy. But, in his words ‘the world is not a perfect place.’ (para 8). As a result of the precedent set by the Burmych decision:
Judge Kūris concedes that the present case was one where such an extraordinary course was justified:
Whilst Judge Kūris concurred with the majority in principle, he dissents because the justification provided for to dispose of the complaints (which he agrees with) should not have led to the operative provision that there was therefore ‘no need to examine’ the complaints.
Lastly (at least on this point), Judge Kūris reflects on the consequences of this development, that it is
Whilst he is comforted that this case is exceptional, there is no reason why it may not become unexceptional. To this, Judge Kūris implores that ‘a remedy or safeguard, or counterbalance must be found – and applied. Needless to say, that remedy or safeguard, or counterbalance, cannot and must not be judicial. To that effect, I can but agree with Judge Koskelo that ‘[a]ny further conclusions remain for other bodies to consider’.
That the European Court of Human Rights decides an outcome for reasons of judicial policy is nothing new. Many of the examples outlined above, where the Court chooses not to find violations, are all implicit or explicit instances of judicial policymaking, either to reduce the caseload burden on the Court by only addressing the bare minimum complaints to dispose of the matter, or to avoid finding violations on politically sensitive issues. But in those cases, the Court justifies its decision (more or less convincingly) by jurisprudential considerations (issue overlap, main legal issues, etc), rather than extra-judicial considerations, such as judicial overload. Other methods the Court relies upon to not find violations (particularly pilot judgments) are all authorised under the Convention or the Rules of Court. Even in Burmych, even when the Court struck out the cases for reasons of judicial overload, it contorted itself into justifying its decision with respect to the respective functions of the Court and the Committee of Ministers vis-à-vis cases arising post-pilot judgments (again, whether this is convincing or will bring any justice is another question). The novelty of this case is that pragmatics alone largely justified the Court’s decision.
Perhaps the Court should be lauded at least for its candour and transparency, something missing from its sometimes Delphic practices. However, by justifying its disposal of the complaints by reason of the impossibility of its situation, the Court has exposed itself to charges of injustice, illegitimacy, and of failure to discharge its core responsibility of ensuring the right to individual petition.
Rather than lay the blame for this extraordinary decision on the Court itself, we should instead view this development within the context of broader attempts by the Council of Europe, its member States and the Court itself to reform the Convention system to deal with the continued issue of the backlog of cases, particularly the known failure to adequately deal with repetitive cases.
Serious attention to address the judicial backlog began in 2010, in the now-ended Interlaken Process. The Interlaken Declaration established an Action Plan to reform the Convention system to reduce its backlog. Since then, many processes have been put in place, generally to good effect. Processes introduced by the Court to reduce repetitive cases include the pilot judgment procedure (mentioned above) in 2011, and the well-established case law (WECL) procedure in 2014 to streamline the case management and to allow a judicial committee of three judges to swiftly issue shorter judgments on repetitive cases.
And yet, as identified by the Council of Europe Steering Committee for Human Rights (CDDH) in 2019, despite these measures, the backlog of repetitive cases before the Court remains a serious problem. Five, largely repetitive, subject matters account for 54% of applications pending before all judicial formations of the Court: conditions of detention, non-enforcement of domestic courts’ judgments, length of proceedings before the domestic courts, cases arising out of conflict between states, and cases arising out of the situation in Turkey in July 2016. The latter (which, of course, was the subject of this case) gets its own category as they alone represent 6% of the total number of cases pending. It is the sheer number of these repetitive cases that has placed significant stress on the functioning of the Court. It is clear that the current tools – mainly pilot judgments and the WECL procedure – are not adequately stemming this tide of repetitive applications.
So what should the Court do? The CDDH recommended in 2019 that ‘[t]he Court should … continue striving to optimise its working methods in order to handle this group of cases. It is important to guarantee, at the same time, that the parties’ rights in the proceedings are not curtailed by the simplified procedures and that the quality of the Court’s judgments and decisions is maintained.’ (para 113)
Of course, there is a balance to be struck here: there is only so much ‘optimising’ of working methods before the Court inevitably curtails the parties’ rights. Arguably in this case, the proper balance was not struck, and as argued by Başak Çalı here, a chamber judgment, where the rights of hundreds of applicants is at stake, is not the proper place to be having this urgent conversation about the survival of the Court. But perhaps in the face of these repetitive cases the Court can no longer strike the right balance, and apart from the soft diplomacy that the Court can leverage at the Council of Europe, a judgment is one of the few places where its cries can be heard. The potential injustice that the Court has resorted to in this case shows, in effect, that it has run out of tools to properly adjudicate these repetitive cases, particularly in cases where the pilot judgment process is not applicable, or where, as in Burmych, the pilot judgment system has arguably failed. In the present case, the Court was left with little option but dispose of the complaints in the way it did.
The conclusion drawn by the CDDH is that ‘further efforts are necessary by all actors in the Convention system’ to stem the tide of repetitive applications (para 232, emphasis added). This is correct: responsibility to address repetitive cases cannot lie with the Court alone. It is incumbent on the Committee of Ministers to better assist States to implement judgments disclosing systemic issues, and for States to promptly provide effective general remedies to resolve the systemic problems (CDDH para 114). In Judge Koskelo’s words, the solution is not for the Court, but for ‘other bodies to consider’. Until then, we may have to tolerate the injustice of decisions such as those found in Turan. Of course, how do we deal with those hypothetical (or some might say real) ‘rogue’ States that are, in Judge Kūris’ words, ‘doing it big’, and overloading the Convention system with cases against them? The only solutions are real political consequences for massive and systemic violations, and more robust consequences for failure to execute judgments. In waiting for these, I am not holding my breath.