A further “constitutionalization” to the detriment of the individual?
On the ECtHR’s stricter reading of the principle of subsidiarity regarding the admissibility of cases
When the ECtHR presented its most recent statistics at the beginning of this year, at first glance this looked like a huge success: The number of pending applications before the Court are down at 56’250, as compared to 79’750 in 2016. Looking back to 2011, when the Court docket had reached its peak with almost 152’000 pending applications, the difference is even more striking. Moreover, last year, the Court managed to reduce its docket despite the fact that the numbers of incoming applications increased by 19%, as compared to the previous year, mainly due to the situation in Turkey (see for the numbers in detail here).
However, the promising numbers do not necessarily mean that the human rights situation in Europe has massively improved, as the Court’s President Guido Raimondi admitted in his opening speech of the judicial year. While the numbers certainly do reflect the reform efforts undertaken since Protocol No. 14, they are only one part of the story. Another important reason is that the Court last year struck out an all-time high number of cases from its docket. The most important number stems from the roughly 27’800 applications brought against Turkey in the aftermath of the attempted coup d’état of July 2016 that were declared inadmissible for lack of exhaustion of domestic remedies (see e.g. Köksal v Turkey). Another considerable number stems from the Grand Chamber judgment in Burmych and others v. Ukraine that led to the striking out of over 12’000 applications (see for more details below).
This practice – and the new, stricter reading of the principle of subsidiarity by the Court reflected in it – has raised considerable criticism. It is argued that the ECtHR escapes politically sensitive judgments and alleviates its heavy docket at the expense of the right to an individual application – one of the cornerstones of the Convention system (see also the joint dissenting opinion in the Burmych case). On the other hand, this move seems understandable, the Court not only being heavily overburdened, but also under political and financial pressure.
These decisions thus implicate structural questions that concern the very nature and raison d’être of the Convention system and its court, also touching upon the old debate on the “individual” versus “constitutional” type of justice rendered by the Court. These positions represent two different, although not mutually exclusive, visions of the proper role of the ECtHR. On one side stand the proponents of an “individual rights” position, in which the Court is to provide for adequate redress in each individual case, and on the other side those that argue for a more constitutional role of the Court, focusing on major issues of policy in the light of the limited resources available (for a good overview see here).
Indeed, the stricter reading of subsidiarity in the admissibility stage provides material for those in support of a more constitutional justice model. It is thus worth taking a closer look at the two mentioned decisions that might entail important structural consequences for the Convention system.
How to deal with the persisting inaction of domestic authorities? The case of Burmych
In the first case, the Grand Chamber judgment in Burmych and others, the Court, having already pronounced itself several times on the matter, concluded that it has done what it could and that it was up to the domestic authorities to act. It declared the case inadmissible under Art. 37.1(c) of the Convention and passed the ball to the Committee of Ministers (CoM), the organ tasked to supervise the implementation process (Art. 46.2. ECHR).
The ruling concerns the systemic problem of non-enforcement of domestic judicial decisions in Ukraine that had kept the Court busy for 16 years and had caused a flurry of applications to Strasbourg. In fact, it is part of the explanation why Ukraine is the state with the most applications pending before the ECtHR (see here). In 2009, the Court decided to address the issue in a pilot judgment (the Ivanov judgment). As a reminder: The purpose of the pilot judgment procedure is to reduce the threat to the effective functioning of the Court caused by a growing caseload stemming from a structural problem at the domestic level. In the eyes of the Court, this is the “most speedy and effective resolution” of a dysfunction at the domestic level (Broniowski, paras. 190-191). However, also following the Ivanov judgment, the Ukrainian authorities failed to undertake any meaningful steps to tackle the issue and new petitions kept on piling up in Strasbourg. Despite having disposed of over 14’000 applications, thousands of fresh ones were pending at the time of the judgment.
In light of the fact that there was no solution in sight and the problem being of a “financial and political nature” (para. 195), the ECtHR decided that it had “discharged its function” under the Convention (para. 197) and that “no useful purpose is served in terms of the Convention’s aims in its continuing to deal with these cases” (para. 199). Recognizing that only the tackling of the root causes at the domestic level would provide a lasting solution, it concluded that “nothing is to be gained, nor will justice be best served, by the repetition of its findings in a lengthy series of comparable cases, which would place a significant burden on its own resources, with a consequent impact on its considerable caseload.” (para. 174).
In the eyes of the seven dissenting judges, the majority ruling prioritises procedural efficiency to the detriment of the rights of individuals and their position in the Strasbourg system. Furthermore, by letting the state off the hook, it risks giving wrong incentives. Finally, the dissenters reproach the Court to “pass the buck” to the CoM (see on this here).
Exhaustion of non-existing remedies? The Turkish cases
In the second case, the application was declared inadmissible for non-exhaustion of domestic remedies (Art. 35.1 ECHR). The applicant, a primary school teacher, is one of the over 50’000 civil servants dismissed in the aftermath of the July 2016 event in Turkey based on emergency legislation for having a link to terrorist organizations or other groups considered as being harmful to the state.
The main question at stake in this case was whether the applicant had an effective remedy available in Turkey, which is the precondition for the exhaustion of local remedies rule. The ECtHR answered this question in the affirmative, referring to a commission that had been established via Decree No. 685 in January 2017. According to the ECtHR, the Turkish Government had put an end to the legal uncertainty about judicial review of those measures and it was thus justified for the applicant “to test the limits of this new remedy” (at para. 28, translation from French).
However, several important questions remain. First of all, the commission had not taken up its work at the time when Mr. Köksal (and many others) addressed the Court. Moreover, according to commentators, there are serious indications suggesting that the commission, in the face of the current political situation and an enormous caseload, will not be able to meet the fair trial requirements of Art. 6 ECHR (see here). Others go even further and point to the now systematic failure to provide effective remedies in Turkey (see here), pointing to several recent domestic decisions, including by the Turkish Constitutional Court, indicating a reluctance by Turkish courts to look into the emergency measures (see here).
“Constitutionalisation” to the detriment of the individual?
The cases seem to show that the Court takes the member state’s call for increased subsidiarity (Brighton declaration) very seriously, maybe too much so (see for some quantitative findings on the increased use of subsidiarity here). Indeed, subsidiarity lies at the heart of these cases, as the Court’s President has stated. But as often, the situation is a bit more complicated.
Regarding first the Ukrainian case, one might argue that the Burmych judgment is just a consistent continuation of the pilot judgment procedure, reflecting the division of labor between Court and CoM and thus nothing so new under the sun. It is highly doubtful that the Court could have added anything in terms of law to the already decided cases. As regards the criticism that it lets Ukraine “off the hook” and that another finding of violation would have put more pressure on the state to finally act, it is important to remember that the possibility to launch an infringement proceeding is still open. This decision, however, lies in the hands of the CoM. What should also not be forgotten is that the concerned applicants are not just devoid of any protection, and the right to an individual application thus not completely undermined. In fact, the Court included them in the general Ivanov-scheme and explicitly reserved the option to come back to the matter.
As regards the Turkish cases, the doubts many have expressed are harder to discard. But also here, the situation is quite complex. Very importantly, the threshold for dispensing applicants from the exhaustion of local remedies rule is high. In line with the case-law that goes back to the Greek case decided by the then Commission in the 1960es, clear evidence that the domestic court system is not functioning seems necessary (see here). The ECtHR has recognized the Turkish Constitutional Court as an effective remedy for quite some time now. It is thus clear that there need to be strong reasons to overturn this presumption. Furthermore, it is understandable, to a certain extent, that the Court being heavily dependent of its domestic counterparts did not want to discard the new domestic complaint mechanism from the outset and rather build on a possible alliance with this body. Finally, recent judgments in which the Court did look into the situation in Turkey certainly contribute to allay preexisting doubts as to the ECtHR’s willingness to provide a remedy for the victims of post-July 2016 human rights violations (see for an overview here).
So how are these cases to be seen in the broader picture, and what are their implications for the overall Convention structure? The stricter reading of subsidiarity on the admissibility stage raises the question whether the challenges the Court faces might drive it further towards a more constitutionalist conception of justice, one in which it is more selective about the cases it hears. As is well-known, also the pilot judgment procedure has mainly been developed to cope with the case-law crisis. In this sense, the constitutionalisation of the ECHR system has always been motivated more by realist than idealist considerations. And the backlog, despite massive improvements, continues to be an important challenge to the Court also today. This is illustrated by the fact that despite working at maximum level, the capacity of the Court remains at around 500 judgments per year. This means that only to deal with the currently pending 6000 priority cases will take the Court nine years. To cite again the Court’s President: The creativity to further increase the Court’s efficiency has its limits. Today, in a time where the Court is under pressure from all sides, the quality of its judgments seems more important than ever, and to concentrate on fewer cases would allow the Court to keep on improving the quality and consistency of its judgments.
Nonetheless, the right to individual application remains a crucial aspect of the current mechanism. Should the Court intend to make more frequent use of the different possibilities to declare applications inadmissible, it seems unavoidable to further discuss the criteria and to try to find a balance between the different interests at stake. What would be detrimental to the credibility and authority of the Court is if the impression arose that it develops a more certiorari type of admissibility (see also here) mainly to avoid politically sensitive judgments. When trying to alleviate its heavy docket, the ECtHR should not lose sight of the purpose of its creation, namely to function as an alarm bell against totalitarianism, and as the “conscience of Europe”.
Raffaela Kunz is Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg.
Cite as: Raffaela Kunz, “A further ‘constitutionalization’ to the detriment of the individual? On the ECtHR’s stricter reading of the principle of subsidiarity regarding the admissibility of cases”, Völkerrechtsblog, 27 August 2018, doi: 10.17176/20180919-182059-0.
Dear Professor Schmid,
Many thanks for your thought-provoking comment! I think the broader issue at stake is whether and how the ECtHR should react to the „backlash“ and political pressure it faces. Generally speaking, I think it is crucial that the Court is responsive to a certain extent and not completely isolated from its environment. As I mention in my post, recent research shows that the Court does respond to the member states’ call for a stronger reliance on subsidiarity (Brighton declaration) and is thus responsive to a certain extent. Against the backdrop of the current situation and the persisting backlog problem, and even though this means that the access of individuals to the Court might be restricted, I very much agree with Professor Wildhaber who always pleaded for a further constitutionalization of the system. I do think that it would be welcome if the Court were more selective about the cases it hears, saving its resources for serious or widespread violations and principled issues of interpretation/broader policy issues. For this “filtering” function, the admissibility stage would indeed be better suited than the merits stage.
However, I also think that it would be a very bad move if the “constitutionalization” went in the direction of a pure politicization. It would be detrimental to the credibility of the Court – and the legal certainty in the system – if the impression arose that the judgments of the Court are mainly guided by political considerations and that it gives in to the political pressure by member states, no matter whether this happens at the admissibility or merits stage. Of course, I am well aware that the Court does have considerable leeway both at the admissibility and merits stage and that it is inevitable that reasons beyond purely legal reasons do play a role in its judgments. Nonetheless, I think in the current political climate with the Court increasingly being under pressure, it is becoming more and more important to think about how the Court can safeguard its authority without losing its credibility. Given its judicial nature, in my opinion the tools the Court has at hands are quite limited, and that its best defence is the quality of its judgments. What could be done from the side of the member states in order to back the Court would be a stronger support in financial terms. Another, currently underused option that would probably take away some pressure from the Court in politically sensitive cases would be to launch inter-state complaints. But I think many questions remain open and very much deserve further discussion (see also the workshop “Responding to Legitimacy Challenges: Opportunities and Choices for the European Court of Human Rights” which will take place on the 21 of September at the ECtHR).
Thanks for this excellent post. I very much agree that the use of the different possibilities to declare applications inadmissible is problematic from the point of view of individual rights. I don’t think we need to theorise too much about the different conceptions of review – to me, it is almost a bit euphemistic to see the developments you mention as a development towards further constitutionalisation. As you rightfully mention, this type of ‘constitutionalisation’ ‘has always been motivated more by realist than idealist considerations’. Given that you focus on admissibility, what are your views on the following dilemma: if the Court absolutely wants or needs to avoid at least some politically sensitive judgments, is it preferable that it declares the case as inadmissible early on or that no violation is found at the merits stage where many would reasonably think the Court should have found one? (The case of Khamtokhu and Aksenchik v Russia comes to mind in which a mere few sentences (para. 82) deal with the rather major question relating to gender discrimination. One could say it is almost positive that the Court abstained from providing any lengthier arguments because additional arguments by the Court would inevitably have had to rely on stereotypical reasoning; or at least I don’t see any others available). I tend to think that in terms of ‘do no harm’ the admissibility approach is preferable but I would be interested in your views.