This is a contribution to an online debate on the case backlog facing the Inter-American Commission on Human Rights moderated by the Inter-American Human Rights Network. Further information on the debate and how to contribute available here.
Helping the Inter-American Commission on Human Rights to Improve Efficiency of Case Handling: A Reflection on the Practice of the European Court of Human Rights
By Dr. Krešimir Kamber
Lawyer, European Court of Human Rights. Opinions expressed are personal.
The growing social and political recognition of the effectiveness of an international system of human rights protection has an often overlooked consequence, namely that societies will increasingly look to utilise the opportunities for recourse provided by the system, even for cases which objectively do not merit (or, in case of non-exhaustion of domestic remedies, allow for) the engagement of these international mechanisms. This eventually creates a vicious circle in which the system becomes inefficient, as it is unable to cope with the increasing demands for protection placed upon it. At the same time, however, the system remains effective for a certain number of cases that do come under its examination. In other words, the system retains the capacity to do right, but faces increasing difficulties in doing so. The end result is a backlash, driven by arguments of inefficiency.
The European and the Inter-American Human Rights Systems are both subject to criticisms of inefficiency. The number of applications on the European Court of Human Rights (ECtHR) docket steadily increased until 2011, creating a backlog of over 160,000 cases. At the same time, an estimate shows that up to 90% of the cases coming into the ECtHR’s Registry are ultimately deemed inadmissible. There was, therefore, “deep concern” over the efficiency of the system and the growing deficit between applications filed and applications disposed of by the ECtHR. In the Latin American context, the Inter-American Commission on Human Rights (IAHCR) is currently experiencing the same problem. Since 2011, the number of petitions pending initial review by the IACHR continues to grow, leaving a backlog of over 9,500 cases in 2015. However, a study conducted in 2011 shows that only 10-13% of new petitions are subject to an initial admissibility review by the IACHR Secretariat. This trend creates the problem of inefficiency in that “the backlog grows, the process slows, and justice is not provided.” It therefore requires “immediate action”, as was recently identified at a discussion forum convened by the Inter-American Human Rights Network (IAHRN) and the Center for Justice and International Law (CEJIL).
In finding solutions to the problem of inefficiency in the Inter-American Human Rights System (IAHRS), the ECtHR’s experience of reducing its backlog of cases and improving its efficiency could provide valuable lessons. The reforms undertaken at the European level have brought about a steep decline in pending cases, from over 160,000 cases before the ECtHR in 2011, to 67,000 cases as of May 2016. The key reforms at the European level were the results of four High Level Inter-Governmental conferences held in Interlaken (2010), Izmir (2011), Brighton (2012) and Brussels (2015). These conferences identified the principal issues related to inefficiencies of the system, and provided political backing for structural reform, especially in regard to the working methods and practices of the ECtHR. These practices can be grouped into three categories, which will be outlined further below.
- The process of filtering of cases
The normative framework for efficient filtering of the clearly inadmissible cases received by the ECtHR was created on 1 June 2010, when Protocol No. 14 of the European Convention on Human Rights (ECHR) entered into force. This enabled applications to be declared inadmissible by a single Judge, assisted by a Non-Judicial Rapporteur (previously a committee of three Judges had been required to perform this function). At the organisational level, this was followed by the establishment of a Filtering Section in 2011, which centralised the filtering of cases for the highest case-count countries (Russia, Turkey, Romania, Ukraine and Poland), with its best practices then shared and applied across the Registry. These practices have secured a thorough and swift sifting of cases by immediately putting all applications on the appropriate procedural track: before a Single Judge for a prompt decision or, if appropriate, before a Committee or Chamber. In practice, this means that clearly inadmissible applications are immediately disposed of by a Single Judge, whereas meritorious applications are further processed before the appropriate decision body. The decision not to supply supporting legal arguments behind inadmissibility decisions made by Single Judges has been criticised, but, following the Brussels conference, the ECtHR has expressed its intention to provide brief reasons for such decisions; a practice due to be implemented in 2016.
The filtering process was additionally boosted in January 2014 by the revision of Rule 47 of the Rules of Court, introducing strict validity requirements for application forms submitted to the Court. The aim of this revision was to facilitate filtering by defining clearly what should be in a valid application. In practical terms, this saves time for Judges and Registry staff when making the initial assessment of an applicant’s complaint, and ensures that resources are reserved for higher priority tasks. The process of revision of Rule 47 was accompanied by an intensive effort by the ECtHR to disseminate the information and practices on introducing a valid application form.
- Priority policy
The revision of Rule 41 of the Rules of Court, concerning the order of dealing with cases and which came into force in 2009, changed the Court’s previous chronological approach to the processing and adjudication of cases. Under the revised Rule 41, the order of dealing with cases is determined by the importance and urgency of the issues raised. The ECtHR has set out clear criteria for this assessment. Under this policy, for instance, a plausible allegation of ill-treatment is dealt with before an allegation of violations of the right to a fair trial or to freedom of speech concerning the same country.
- Pilot-judgments procedure
The pilot judgment procedure, envisaged under Rule 61 of the Rules of Court, is an innovative technique developed by the ECtHR as a potential solution to the problem of repetitive pending cases. It applies to cases that have the same underlying cause and whose individual processing congests the ECtHR’s processes. The aim of the pilot-judgment procedure is: (1) to determine whether there has been a violation of the ECHR in the case in question; (2) to identify the dysfunction under national law that is at the root of the violation; (3) to give clear indications to the Government as to how it can eliminate this dysfunction; and (4) to help create a domestic remedy capable of dealing with similar cases, or at least to bring about the settlement of all such pending cases before the ECtHR.
In practice, the pilot-judgment procedure operates so that the ECtHR selects one or more cases that have the same underlying problem for priority treatment. In dealing with the selected case(s), it then seeks to find a solution that extends beyond the particular case. At the same time, the examination of all other related cases is adjourned for a certain period, during which time the Government involved is obliged to rectify the problem identified. Once reforms are put in place the applicants are, in principle, in a better position to obtain prompt and efficient justice at the domestic level. If the reforms are not adequately implemented, the ECtHR continues its examination of all other pending cases on the basis of the principles identified in the pilot case.
The spread of best practices between regional human rights regimes provides a sound and reasoned basis for possible reforms, aimed at boosting the efficiency and effectiveness of a particular human rights system. The reforms carried out at the European level are certainly not without their faults and shortcomings, but there is no doubt that they have successfully fostered the efficiency of the ECHR system for the benefit of practical and effective human rights protection. The success of these reforms depends on many external factors, including an inclusive and honest dialogue between the relevant stakeholders, but also on internal factors related to the constant search for better working methods and techniques within the established mechanisms of rights protection.
 The relevant statistics are available at http://www.echr.coe.int/Documents/Stats_analysis_2011_ENG.pdf (last visited 5 May 2016).
 For more detailed information, see http://www.echr.coe.int/Documents/Filtering_Section_ENG.pdf (last visited 5 May 2016).
 See the Interlaken Declaration of the High Level Conference on the Future of the European Court of Human Rights, 19 February 2010, p. 1.
 The relevant statistics are available at http://www.oas.org/en/iachr/multimedia/statistics/statistics.html (last visited 5 May 2016).
 See D. Shelton, The Rules and the Reality of Petition Procedures in the Inter-American Human Rights System (University of Notre Dame, The Centre for Civil & Human Rights 2014), p. 14.
 Ibid., p. 13.
 “Strengthening IAHRS Impact through Scholarly Research”, a discussion forum convened by the Inter-American Human Rights Network (IAHRN) and the Center for Justice and International Law (CEJIL), Washington D.C., 10 April 2016.
 The relevant statistics are available at http://www.echr.coe.int/Documents/Stats_pending_2016_BIL.pdf (last visited 5 May 2016).
 See the Brussels Declaration of the High-level Conference on the Implementation of the European Convention on Human Rights, our shared responsibility, 27 March 2015, p. 4.
 See also the ECtHR’s Report on the implementation of the revised rule on the lodging of new applications, available at http://www.echr.coe.int/Documents/Report_Rule_47_ENG.pdf (last visited 5 May 2016).
 These criteria are available at http://www.echr.coe.int/Documents/Priority_policy_ENG.pdf (last visited 5 May 2016).
 Compare with Article 29(2) of the Rules of Procedure of the IACHR. Shelton has argued that there are so many criteria for expedited consideration under Article 29 that most petitions fall to be examined expeditiously (Shelton, supra n. 5, p. 15).
 See also The Pilot-Judgment Procedure, Information note issued by the Registrar, available at http://www.echr.coe.int/Documents/Pilot_judgment_procedure_ENG.pdf (last visited 5 May 2016); A. Uzun Marinković and K. Kamber, “Fostering implementation of human rights adjudications at the domestic level by strengthening and clarifying the rules on exhaustion of domestic remedies: A lesson learned from the ECtHR leading and pilot judgment procedures”, paper for the workshop Moving Beyond the Good, the Bad and the Ugly: What to Learn From International Human Rights Systems? organised by the Inter-American Human Rights Network (IAHRN) and the Human Rights Centre of the Ghent University, Ghent, 29-30 January 2016, to be published in a special edition of the Inter-American and European Human Rights Journal (November 2016).