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ABSTRACT
The past two decades at the European Court of Human Rights have been marked by various efforts to reduce its backlog of cases through changing the substantive, procedural, and formal practices surrounding access to the Court. Proposals aimed at facilitating these efforts have also rested on the unarticulated premise that solving the ECtHR's backlog problem necessarily involves an either-or choice between improving the Court's efficiency and shrinking individual access to it. This article departs from that premise. Drawing on Martha Fineman's ‘theory of vulnerability’ and her vision for social justice, the article lays out a proposal that allows for the coexistence of efficiency and individual access through a hybrid decision-making (HDM) model. First, we show that from a vulnerability theory perspective, better access to human rights courts is a key component of a just human rights system. Second, we argue that in order to be just, procedures need to be context-sensitive and adopted in ways that acknowledge humans' inherent vulnerability. To support the argument, we draw inspiration from the African Court on Human and Peoples' Rights, whose current practices help illustrate the point that more equitable access to justice need not be a relic of the past.
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Notes
1 Henrik Døcker, ‘Does the Court of Human Rights Need a Helping Hand’ (2002) 20 Mennesker og Rettigheter 46. Authors’ translation from Danish.
2 Cosette Creamer and Zuzanna Godzimirska, ‘Trust in the Court: The Role of the Registry of the European Court of Human Rights’ (2019) 32 European Journal of International Law 665.
3 Paul Mahoney, ‘The European Court of Human Rights and Its Ever-Growing Caseload: Preserving the Mission of the Court While Ensuring the Viability of the Individual Petition System’ in Spyridon Flogaitis, Tom Zwart and Julie Fraser (eds), The European Court of Human Rights and Its Discontents: Turning Criticism into Strength (Edward Elgar Publishing 2013) 19.
4 Helen Keller, Andreas Fischer and Daniela Kühne, ‘Debating the Future of the European Court of Human Rights after the Interlaken Conference: Two Innovative Proposals’ (2010) 21 The European Journal of International Law 1025, 1026; Christina G Hioureas, ‘Behind the Scenes of Protocol No 14: Politics in Reforming the European Court of Human Rights’ (2006) 24 Berkeley Journal of International Law 718.
5 See e.g. Steven Greer and Luzius Wildhaber, ‘Revisiting the Debate about Constitutionalising the European Court of Human Rights’ (2012) 12 Human Rights Law Review 655.
6 In broad terms, individual justice pursues individual relief. Constitutional, oftentimes also called ‘general’ justice seeks to ensure and develop human rights through the general development of a court's case law. For a discussion on the difference between the two, see e.g. ibid.; Nikos Vogiatzis, ‘The Admissibility Criterion under Article 35(3)(b) ECHR: A “Significant Disadvantage” to Human Rights Protection?’ (2016) 65 International & Comparative Law Quarterly 185, 194–96.
7 But see Dinah Shelton, ‘Significantly Disadvantaged? Shrinking Access to the European Court of Human Rights’ (2016) 16 Human Rights Law Review 303; Vogiatzis (n 6). Shelton adopts an individual perspective, but focuses on improving compliance. Vogiatzis, in turn considers alternative proposals to reduce the court's workload but from an individual justice perspective.
8 Martha Albertson Fineman, ‘Vulnerability and Social Justice’ (2019) 53 Valparaiso University Law Review 341, 342.
9 See e.g. Cathy O’Neil, Weapons of Math Destruction: How Big Data Increases Inequality and Threatens Democracy (Crown Publishers 2016); Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor (St Martin's Press 2018).
10 An example from the ECtHR of one such recent formal criteria becoming increasingly stringent is the adoption of Protocol No 15. Its Article 4 reduces the temporal limit of lodging a claim to the ECtHR after the final judgment at the domestic level from six to four months.
11 Martha Albertson Fineman, ‘Universality, Vulnerability, and Collective Responsibility’ (2021) 16 Les ateliers de l’éthique/The Ethics Forum 17.
12 Elizabeth L MacDowell, ‘Vulnerability, Access to Justice, and the Fragmented State’ (2018) 23 Michigan Journal of Race and Law 55.
13 Martha Albertson Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20 Yale Journal of Law and Feminism 1. Fineman is a ‘vulnerability scholar’, working at the juncture of law, philosophy, and sociology.
14 Fineman, ‘Universality, Vulnerability, and Collective Responsibility’ (n 11) 26–31.
15 Ibid. 8.
16 Fineman, ‘Vulnerability and Social Justice’ (n 8) 342.
17 Ibid. 361.
18 Fineman, ‘Universality, Vulnerability, and Collective Responsibility’ (n 11) 23.
19 For an overview of these reforms, see e.g. Jonas Christoffersen, ‘Individual and Constitutional Justice: Can the Power Balance of Adjudication Be Reversed?’ in Jonas Christoffersen and Mikael Rask Madsen (eds), The European Court of Human Rights Between Law and Politics (Oxford University Press 2011).
20 See Fineman, ‘The Vulnerable Subject’ (n 14); Aysel Eybil Küçüksu, ‘Fineman in Luxembourg: Empirical Lessons in Asylum Seeker Vulnerability from the CJEU’ (2022) Netherlands Quarterly of Human Rights.
21 Corina Heri, Responsive Human Rights: Vulnerability, Ill-Treatment and the ECtHR (Hart Publishing 2021).
22 Janneke H Gerards and Lize R Glas, ‘Access to Justice in the European Convention on Human Rights System’ (2017) 35 Netherlands Quarterly of Human Rights 11, 23; Françoise Hampson, Claudia Martin and Frans Viljoen, ‘Inaccessible Apexes: Comparing Access to Regional Human Rights Courts and Commissions in Europe, the Americas, and Africa’ (2018) 16 I•CON 161, 165.
23 Ed Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights (Oxford University Press 2010) citing Thomas Buergenthal, ‘Book Review’ (1987) 81 AJIL 280.
24 Costas Paraskeva, ‘Reforming the European Court of Human Rights: An Ongoing Challenge’ (2007) 76 Nordic Journal of International Law 185, 186. Furthermore, the Commission, which previously had screened applications, was discontinued, leaving the Court as the sole adjudicator over alleged breaches of the Convention on the territory of the CoE.
25 When the Russian Federation ratified and accepted the optional clauses of the Convention on 5 May 1998, six applications for membership of the Council of Europe awaited (Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Georgia, and the Federal Republic of Yugoslavia). See Bates (n 23) 447.
26 New rights were added through Protocols No 1, 4, 6, 7, 12, and 13.
27 In the early years, the Commission and the Court were of limited size, with their Secretariat and Registry employing no more than 10 persons. By 2019, the Court's Registry comprised more than 600 staff members. See Creamer and Godzimirska, ‘Trust in the Court’ (n 2) 672.
28 Gerards and Glas (n 22) 21; Shelton (n 7).
29 We direct readers to the ECtHR's Practical Guide on Admissiblity Criteria, which offers an overview of when and how the threshold was raised to the various criteria: <www.echr.coe.int/documents/admissibility_guide_eng.pdf> accessed 25 May 2022.
30 See generally, ECHR, arts 32 and 35.
31 Gerards and Glas (n 22); Janneke Gerards, ‘Inadmissibility Decisions of the European Court of Human Rights: A Critique of the Lack of Reasoning’ (2014) 14 Human Rights Law Review 148; Shelton (n 7); Vogiatzis (n 6).
32 Protocol No 15 that entered into force on 1 August 2021 and becomes applicable 1 February 2022 amended Article 35 § 1 to reduce the period from six months to four.
33 Gerards and Glas (n 22) 21.
34 Cosette D. Creamer and Zuzanna Godzimirska, ‘Elite Trust in International Courts: Evidence from the European Court of Human Rights’ (American Political Science Association Annual Meeting, Washington DC, 2019), pp. 1-43, p. 11.
35 Ibid.
36 European Court of Human Rights, Rules of the Court, r 47 <www.echr.coe.int/Documents/Rule_47_ENG.pdf>.
37 The application with instructions can be found in the official languages of the CoE Member States. The English version may be found here: <www.echr.coe.int/Pages/home.aspx?p=applicants/forms&c=>.
38 European Court of Human Rights, Rules of the Court, r 47 <www.echr.coe.int/Documents/Rule_47_ENG.pdf>.
39 Cases allocated to a single-judge formation are those that fulfil all the formal and procedural criteria, but are considered manifestly ill-founded and likely to be declared inadmissible on substantive grounds.
40 European Court of Human Rights, ‘Analysis of statistics 2021’ (January 2022), 6 <www.echr.coe.int/Documents/Stats_analysis_2021_ENG.pdf>.
41 See, for example, European Court of Human Rights, ‘The admissibility of an application’ (2015). <www.echr.coe.int/Documents/COURtalks_Inad_Talk_ENG.PDF>.
42 European Court of Human Rights, ‘Common Mistakes in Filling in the Application Form and How to Avoid Them’ (January 2016) <www.echr.coe.int/Documents/Applicant_common_mistakes_ENG.pdf>.
43 Ibid.
44 Creamer and Godzimirska, ‘Elite Trust’ (n 34); Gerards and Glas (n 22) 21–22 accessed 25 May 2022.
45 Human Rights and Democracy in the Age of Digital Transformation and COVID-19. Interview with ECtHR President, Robert Spano <www.youtube.com/watch?v=-6Kb5L2Kh3g&t=4s> (at 17 minutes) as noted in Veronika Fikfak, ‘What Future for Human Rights? Decision-Making by Algorithm’ (Strasbourg Observers blog, 19 May 2021) <https://strasbourg.weichie.dev/2021/05/19/what-future-for-human-rights-decision-making-by-algorithm>.
46 This was the language adopted by the ECtHR in its Practical Guide on Admissibility Criteria describing, for example, the reasons for introducing the ‘no significant disadvantage’ criterion in Article 35 § 3 (b): <www.echr.coe.int/documents/admissibility_guide_eng.pdf>.
47 European Parliament. Directorate General for Parliamentary Research Services., Understanding Algorithmic Decision-Making: Opportunities and Challenges. (Publications Office 2019) <https://data.europa.eu/doi/10.2861/536131> accessed 4 October 2021. Algorithms can both be hand-coded or generated automatically from data, in which case it is referred to as machine learning.
48 See e.g. Guido Noto La Diega, ‘Against the Dehumanisation of Decision-Making – Algorithmic Decisions at the Crossroads of Intellectual Property, Data Protection, and Freedom of Information’ (2018) 9 JIPITEC <https://www.jipitec.eu/issues/jipitec-9-1-2018/4677>; Aysel Eybil Küçüksu and Stephanie Shelton, ‘Bias: A Much Needed Subjectivity?’ in Jean-Frédéric Morin, Christian Olsson and Ece Ozlem Atikcan (eds), Key Concepts in Research Methods (Oxford University Press 2021).
49 Henrik Palmer Olsen, Jacob Livingston Slosser and Thomas Troels Hildebrandt, ‘What's In the Box? The Legal Requirement of Explainability in Computationally Aided Decision-Making in Public Administration’ in Hans-W Micklitz and others (eds), Constitutional Challenges in the Algorithmic Society (Cambridge University Press 2021) 230–34.
50 Ibid.
51 Ibid. 231.
52 It is important to state that we are not making a case against formal requirements for lodging an application with the Court; instead, we are arguing for a safety net against excessive formalism (be it manual or algorithmic).
53 See James Thuo Gathii, ‘Introduction’ in James Thuo Gathii (ed), The Performance of Africa's International Courts: Using Litigation for Political, Legal, and Social Change (Oxford University Press 2020); Oliver Windridge, ‘In Default: African Commission on Human and Peoples’ Rights v Libya’ (2018) 18 African Human Rights Law Journal 758, 760.
54 Alexandra Huneeus and Mikael Rask Madsen, ‘Between Universalism and Regional Law and Politics: A Comparative History of the American, European, and African Human Rights Systems’ (2018) 16 International Journal of Constitutional Law 136.
55 Article 6(2) of the Protocol states that ‘The Court shall rule on the admissibility of cases taking into account the provisions of Article 56 of the Charter’.
56 See Frank David Omary and Others v Tanzania (admissibility) (2014) 1 AfCLR 358 p 28, [85].
57 This was permitted in cases like Peter Joseph Chacha v Tanzania (admissibility) (2014) 1 AfCLR 398, which involved an indigent prisoner who alleged that his arrest and detention for armed robbery as well as the seizure of his property were unlawful.
58 African Charter, art 56(6) and Rules of Procedure, 2020, r 50(2)(f).
59 Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo, Blaise Ilboudo and Mouvement Burkinabe des Droits de l’Homme et des Peuples v Burkina Faso (preliminary objections) (2013) 1 AfCLR 197, Para 121. In this particular case, the reasonable period was three years and five months. The jurisprudence of the African Commission revealed a similar approach, see Priscilla Njeri Echaria v Kenya, App No 375/09, Af Comm HPR (Nov 5, 2011).
60 See FIDH Admissibility of Complaints before the African Court, Practical Guide, June 2016, pp 26–27.
61 Tanganyika Law Society, Legal and Human Rights Centre and Reverend Christopher R Mtikila v Tanzania (Merits) (2013) 1 AfCLR 34, [83].
62 Wilfred Onyango Nganyi and Others v Tanzania (merits) (2016) 1 AfCLR 507, [94].
63 African Charter, art 56(5). See ST Ebobrah, ‘The Admissibility of Case Before the African Court on Human and People's Rights: Who Should Do What’ (2009) 3(1) Malawi Law Journal 87.
64 This is currently rule 50 of the Revised Rules of Court of the African Court on Human and Peoples’ Rights, September 1, 2020.
65 Lohé Issa Konaté v Burkina Faso (merits) (2014) 1 AfCLR 314.
66 Lohé Issa Konaté v Burkina Faso (merits) (2014) 1 AfCLR 314, p 26 [96] The Court cites the African Commission on Human and Peoples Rights, Sir Dawda K Jawara v Gambia Communication No 147/95–149/96, para 31.
67 Application No 013/2011, Judgment of 28 March, 2014, p 24, [68]. See also Wilfred Onyango Nganyi and Others v Tanzania (merits) (2016) 1 AfCLR 507.
68 Wilfred Onyango Nganyi and Others v Tanzania (merits) (2016) 1 AfCLR 507, para 94.
69 Sébastien Germain Ajavon v Benin, AfCHPR (Merits, 29 March 2019) para 97. The Court cites Application No 005/2013. Judgment of 20/11/2015, Merits, Alex Thomas v United Republic of Tanzania, para 64.
70 James Thuo Gathii and Jacquelene Wangui Mwangi, ‘The African Court of Human and Peoples’ Rights as an Opportunity Structure’ in James Thuo Gathii (ed), The Performance of Africa's International Courts: Using Litigation for Political, Legal, and Social Change (Oxford University Press 2020) 230.
71 See, INTERIGHTS and Others v Mauritania, Southern African Human Rights NGO Network v Tanzania, Commission.
72 Alex Thomas v United Republic of Tanzania, para 63. See also Gathii and Mwangi (n 70) 230.
73 Ibid.
74 Onyango Nganyi and Others v Tanzania (merits) (2016) 1 AfCLR 507, para 95.
75 Jebra Kambole v United Republic Tanzania. AfCHPR 2018, para 31; Majid Goa v United Republic of Tanzania (2015) p 6, [17]; Armand Guehi v United Republic of Tanzania (Merits and Reparations) (2018) 2 AfCLR 477, paras 25–27.
76 Dániel A Karsai, ‘Role of the Constitutional Courts in the System of the Effective Domestic Remedies: A New Approach on the Horizon? Criticism of the Mendrei v Hungary Decision’ (Strasbourg Observers blog, 15 October 2018) <https://strasbourg.weichie.dev/2018/10/15/role-of-the-constitutional-courts-in-the-system-of-the-effective-domestic-remedies-a-new-approach-on-the-horizon-criticism-of-the-mendrei-v-hungary-decision/>.
77 European Convention on Human Rights, art 35(3).
78 Sègnonna Horace Adjolohoun, ‘A Crisis of Design and Judicial Practice? Curbing State Disengagement from the African Court on Human and Peoples’ Rights’ (2020) 20 African Human Rights Law Journal 1, 28.
79 Ibid.
80 Mohamed Abubakari v United Republic of Tanzania, App No 007/ 2013, Judgment, African Court on Human and Peoples’ Rights [Afr Ct HPR], para 76.
81 See also Henrik Palmer Olsen and Aysel Küçüksu, ‘Finding Hidden Patterns in ECtHR's Case Law: On How Citation Network Analysis Can Improve Our Knowledge of ECtHR's Article 14 Practice’ (2017) 17(1) International Journal of Discrimination and the Law 4.
82 Veronika Fikfak, ‘Changing State Behaviour: Damages Before the ECtHR’ (2018) 29 European Journal of International Law 1091, 1108.
83 Gathii and Mwangi (n 70).
84 Olsen, Slosser and Hildebrandt (n 49) 231.
85 Malcolm Langford, ‘Taming the Digital Leviathan: Automated Decision-Making and International Human Rights’ (2020) 114 American Journal of International Law 141, 145.