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Research Report

The Reform of the EU Courts (III): The Brilliant Alternative Approach of the European Court of Human Rights

Franklin Dehousse
with the collaboration of Benedetta Marsicola
Copyright Date: Sep. 1, 2016
Published by: Egmont Institute
Pages: 75
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Table of Contents

  1. (pp. 6-7)

    In 2011, the European Court of Justice (ECJ) proposed a strong increase of the judges of the European General Court, to deal with a substantial backlog. At the time, the author indicated that it would be preferable to implement a careful and progressive strategy, with internal reforms and small targeted increases of personnel1. A little bit later, the General Court began to implement this strategy. Four years later, at the end of 2015, after a very long and complex debate, the EU institutions decided to double the number of judges in the European General Court (EGC). According to various press...

  2. (pp. 8-11)

    The reader will find here a very brief reminder of the functioning of the Court, according to rules currently in force.

    The Court has jurisdiction over all matters concerning the interpretation and application of the Convention and the Protocols. The applications can be brought before the Court by a State Party against another State Party or by physical persons, NGOs or groups of individuals claiming to be a victim of a violation of the Convention by a State Party.

    To be admissible, an application must meet a number of criteria. Applicants can file an application before the ECtHR only after...

  3. (pp. 12-23)

    The collection and analysis of data is a complex exercise due to the fact that the Court has undergone changes in both its case handling and its working methods through the years. Also, special circumstances can alter the figures quite considerably, for example high numbers of applications with respect to systemic issues. Cases pending at pre-trial stage (that have not yet been filtered for allocation to a judicial formation or struck out), are not considered in the account of the pending cases and of the backlog. Additionally, cases which are not allocated to a judicial formation do not constitute a...

  4. (pp. 24-31)

    A fascinating aspect of the reform process in the Council of Europe has been its open and strongly debated nature. It was also a widely consensual one. There lies a fundamental difference with the EU Courts’ reform in the European Union, which was generally closed, opaque, very weakly debated, and often conflictual.

    The need for an in-depth first reflection as to how to ensure effectiveness in spite of an increasing number of applications has been the object of discussion since the beginning of this century. Possible options were already discussed at an embryonic level at the European Ministerial Conference on...

  5. (pp. 32-51)

    It is possible now to enumerate the numerous reforms undertaken by the ECtHR that had an impact in the handling of its backlog. They will be presented here with a summary evaluation.

    Protocol n° 14 introduced Single Judge Formations, with jurisdiction to declare inadmissible, or to strike out, individual applications. As provided for by the new Article 27 of the Convention, when they decide not to issue a final decision on admissibility, Single Judges shall forward the application to a Chamber or Committee. Single Judges are appointed for twelve months by the President of the Court and are assisted by...

  6. (pp. 52-53)

    In a press release of 24 October 2013, the Registry of the Court informed that the methods employed since the entry into force of Protocol n° 14 had succeeded in reducing the backlog of cases; the number of pending applications was around 96, 000 whereas in 2011 it had reached its maximum of above 161, 000. This positive trend has continued since then, the number of pending applications reaching the low of 64, 850 at the end of 2015. Most remarkably, in 2015 the backlog of single judge cases had been absorbed. Inadmissible cases can now be dealt with speedily...

  7. (pp. 54-62)

    In that framework, other measures for the handling of the applications by the ECtHR have been proposed or debated but not (yet) adopted. One of the advantages of a serious and open preparatory process is that a lot of propositions are advanced. In October 2012, August 2013, January 2015, and October 2015 respectively, the Court published the reports called “The Interlaken Process and the Court”, as a follow up to the international high level conferences.171 These documents mention a series of supplementary measures that the Court could adopt in the future. First, of course, changes should be expected as a...

  8. (pp. 63-71)

    These conclusions are divided into two parts. The first covers the specific characteristics of the challenges before the ECtHR. The second endeavours to draw some lessons from the ECtHR’s experience for the reform process of the EU courts. As mentioned at the beginning, there are important differences between the two systems. However, from the point of view of judicial management and reform management, many of the problems remain substantially the same.

    Considering the specific characteristics of the challenges before the ECtHR, there is clearly a fundamental problem of implementation. After 1989, the Council of Europe underwent enormous and simultaneous changes....