In the first part of this chapter, I take a closer look at the Court to shed light on what kind of actor the Court is. What motivates it to oscillate between audacity and forbearance? To answer this question, I rely on the existing accounts of the Court’s inner workings and the insights gained from the interviews I carried out in 2014 and 2015. I consider the Court’s internal character as a collective actor composed of different groups of agents (i.e., elected judges, permanent staff, and support services). The Court’s smooth operation depends on a division of labour and close collaboration among these different groups. Beyond its functional benefits, this collaboration cultivates a coherent legal culture and gives the Court a collective purpose. In the second part of the chapter, I turn to the Court’s institutional transformation and how this transformation has influenced the width of its discretionary space. In particular, I describe how the part-time old Court transformed into the full-time new Court with compulsory jurisdiction and how the new Court transitioned into the reformed Court due to a series of reform processes that started in 2010. I will then elaborate on the implications of these shifts on the way the Court operated in different stages of its lifetime.
Who Is the Court?
The European Court of Human Rights (the Court) is “the crown jewel” of the human rights regime embedded in the Council of Europe, located in Strasbourg, France.Footnote 1 The Court was created to oversee the application of the European Convention of Human Rights (the Convention).Footnote 2 The Registry is its largest organ, with roughly 640 staff members, a considerable number of whom are employed on a permanent basis. The Registry’s staff includes lawyers, administrative staff, translators, and the Jurisconsult in charge of ensuring the consistency of jurisprudence.Footnote 3
The Court is organised into five sections, each with its own judicial chamber, President and Vice President (elected from among the judges), Section Registrar, and Deputy Section Registrar. The sections are the Court’s administrative units; each unit includes nine or ten judges who are assisted by members of the Registry.Footnote 4 Judges assigned to these administrative units may serve in one of the following four formations: (1) Single-judge formation, which is mainly responsible for filtering inadmissible cases, (2) Committee of three judges that decides on the admissibility and merits of cases where case law is already well-established, (3) Chamber of seven judges that reviews admissibility and merits of non-repetitive cases, and (4) Grand Chamber of seventeen judges that serves as an appeal mechanism over relinquished or referred cases.Footnote 5
The entire case processing system relies on a synergetic interaction between the Registry’s legal team and elected judges. As Nina-Louisa Arold, who conducted a research stay at the Court, rightly points out, “[the permanent staff] remain in Strasbourg so long that their domestic legal cultures become secondary to their experience of the Strasbourg system,” and judges serving for a limited term “bring the necessary fresh knowledge of the national law into the system.”Footnote 6 The existence of the permanent staff, some of whom have worked for the Registry for several decades, contributes to the maintenance of the legal culture and the “stability and continuity of legal reasoning.”Footnote 7 Similarly, Cosette Creamer and Zuzanna Godzimirska describe the Registry’s role as being “largely related to ensuring continuity and coherence in the Court’s caselaw and maintaining the institutional memory of the Court.”Footnote 8 One former judge also highlighted this point in an interview, where he described the Registry’s role as “keeping the Court intact and preventing it from going into different schools.”Footnote 9
Judges are a much smaller group.Footnote 10 There are currently forty-six judges, one from each member state of the Council of Europe, holding nonrenewable nine-year terms.Footnote 11 The Parliamentary Assembly elects one judge per member state.Footnote 12 The number of judges decreased from forty-seven to forty-six when Russia ceased to be a party to the European Convention on September 16, 2022.Footnote 13 Elected judges often have diverse professional backgrounds, though typically hold academic, judicial, or public office positions in their home countries before being elected.Footnote 14 Although elected judges are a minority of the Court’s staff, their work carries major significance since they hold the official responsibility of issuing rulings.Footnote 15
As became clear in the course of the interviews I carried out at the Court, judges have different views concerning the Court’s role. Seven out of the fifteen sitting judges I interviewed told me they considered their role to be the simple application of the Convention.Footnote 16 These seven were mostly from Western European countries. Four other judges, mostly from Eastern European countries, told me that the Court’s role is to protect human rights and enforce the rule of law. The remaining four judges saw their role as setting standards across Europe. Some of the judges elaborated on their vision of the Court. According to one judge: “the Court is there to uphold the values of our civilization.”Footnote 17 Another judge with an academic background said that the Court’s role is “to build a Europe of Rights.”Footnote 18 Some believe that the Court’s role should be more limited. A judge from Western Europe defined the Court’s role as ensuring that “the High Contracting parties observe the Convention’s provisions.”Footnote 19 He further added the following: “I have a very traditional sense of what it is to be a judge. I am not a policymaker. I am not a politician. I am here to decide on a case-by-case basis whether the member states have respected human rights as provided by the Convention.”Footnote 20 Finally, another judge, who previously served on a constitutional court, argued that the primary role of the Court is to decide whether states have complied with their obligations arising from the Convention.Footnote 21 He then added:
The secondary or collateral role of the Court is that of a standard setter. (…) a third, even perhaps more collateral – but at the same time vitally important – the role is that of ensuring that the Convention remains a credible document. This credibility could be undermined if the Court were to interpret and apply the Convention in such a way that some member States would consider it as re-writing the Convention. This could happen with unnecessary forays into areas such as ethics and morality.Footnote 22
Eight out of fifteen judges argued that it is within the Court’s prerogative to refine the norms in line with societal needs and changing moral values.Footnote 23 In contrast, three judges, all from Western European countries, argued that the Court’s role does not extend into creating new rights.Footnote 24 One judge especially cautioned that the Court must be careful when generating legal change in order to avoid causing backlash from member states.Footnote 25
Scholars have considered how it is that judges coming from different countries, with different prior experiences and understandings, work together as a part of a collective body. In one study, Erik Voeten investigated whether judges exhibited national bias. He concluded that the heterogeneity of judges’ national legal cultures does not compromise their impartiality.Footnote 26 Nina-Louisa Arold, on the other hand, found that the Court provides a space within which national legal cultures or professional backgrounds are fused into a common legal culture.Footnote 27 Judges bring fresh perspectives and experiences that complement the Court’s long-term legal tradition, which is well guarded by the Registry’s permanent team.
According to my interviews, the synergetic interaction between elected judges and the Registry’s permanent staff is what fuels the Court’s operations.Footnote 28 What became evident in our conversations was that judgments are not just “made” by the judges sitting on the bench. Instead, they are the outcome of a process in which many nameless individuals – such as law clerks, nonjudicial rapporteurs, or editors – are also involved.Footnote 29 Judgments are the products of the Court as an institution. “They are public documents,” one judge explained.Footnote 30 They are decided either unanimously or by majority vote and are signed by the entire Chamber, the Committee, or the Grand Chamber. In this regard, they are different from separate opinions authored and owned by an individual judge or a group of judges.
Judgments become institutional documents also because of the way they are produced. The case processing system is complicated and requires the entire staff’s collaboration – from judges to the Registry’s legal and support services teams. When an application is submitted, it is transferred to one of the Sections and assigned to a reporting judge (judge rapporteur).Footnote 31 The judge rapporteur and the Registry’s clerks who assist them have an important role in this case throughout the proceedings.Footnote 32 Their tasks include submitting a draft report on admissibility, requesting further information from the parties when needed, and proposing a draft judgment to the Chamber to be discussed during deliberations.Footnote 33
Following an initial examination, the judge rapporteur decides whether the case will be reviewed by a single-judge formation, a Committee, or a Chamber.Footnote 34 The cases that appear to be inadmissible at first glance (manifestly ill-founded cases) are passed to a single-judge formation or to a Committee.Footnote 35 These units are in charge of “disposing of the weakest cases.”Footnote 36 Assisted by a nonjudicial rapporteur, single judges may declare a case inadmissible or strike it out of the list. Similarly, a Committee of three judges may issue admissibility decisions or strike a case out of the list if the decision is unanimous.Footnote 37 In the event that the Committee cannot reach a unanimous decision, the case is reviewed by a Chamber.Footnote 38
When there is no apparent reason to declare a case inadmissible, it is communicated to the responding government. The government is then required to submit written observations or reply to specific questions. The applicant is also invited to submit observations in response.Footnote 39 Based on the parties’ written submissions (or oral hearings, if applicable),Footnote 40 the Court assesses both the admissibility and the merits of the case and issues a judgment.Footnote 41 If a case raises important questions concerning the Convention’s interpretation or the jurisprudence’s consistency, then that case is relinquished to the Grand Chamber.Footnote 42 Parties may also request a Chamber judgment to be sent to the Grand Chamber for a final review.
This procedure through which a case traverses between different case processing units may seem to be automatic. However, in practice, case processing is realised by means of the tedious work of drafting and redrafting documents and expressing grievances as legal problems.Footnote 43 It is the Registry’s legal team that administers the case processing steps.Footnote 44 They draft the case correspondence, admissibility decisions, and judgments for consideration by single judges or judge rapporteurs.Footnote 45 In addition, the facts of the cases are always processed and written by the Registry.Footnote 46 The lawyers may also inform the judge rapporteurs about the relevant national law, or even applicable European jurisprudence if the judge is new or less experienced.Footnote 47
Helen Keller, a former judge at the Court, and Corina Heri explain that the deliberations for Chamber and Grand Chamber judgments differ. Before the deliberations at the Chamber, the judges receive “a thick file from the Registry that already contains a draft judgment or decision.”Footnote 48 They also receive a document about the Court’s caselaw from the Jurisconsult in order to ensure consistency.Footnote 49 The judge rapporteur presents the draft opinion to the Chamber at the deliberations.Footnote 50 Participating judges express their opinions and take a preliminary vote. The clerks revise the draft judgment based on this feedback. Keller and Cori explain that “there is usually no second deliberation in the Chamber proceedings, as there is often no need for one: generally, the Chamber judges approve the draft judgments or decisions before them.”Footnote 51
The discussions at the deliberation are not reflected in the final ruling, which is decided either unanimously or by majority vote.Footnote 52 The judgment, which is the text of the majority, does not give a hint about how the Chamber reached a decision. Since deliberations take place in secrecy, one cannot know whether the decision is fully based on the draft proposed by the judge rapporteur and clerks, or a version modified to some degree.Footnote 53 It is impossible to discern the judges’ individualised input in the final judgment’s text. However, judges who do not fully agree with the majority tend to announce their position in separate opinions annexed to the judgment.Footnote 54
Grand Chamber proceedings are like those of the Chamber. However, judges do not receive draft judgments before deliberations at the Grand Chamber. Instead, the judges receive a note from the judge rapporteur (rapporteur’s note) and reports from the Registry.Footnote 55 While the Chamber usually uses the draft judgment as a template to inform the final decision, the Grand Chamber does not have such a template. Rather it finds a way to resolve the dispute during the course of deliberations, in line with the information provided by the judge rapporteur and the Registry.Footnote 56 Grand Chamber proceedings generally start with a public hearing.Footnote 57 At the end of the first deliberation session, the Grand Chamber’s president selects a drafting committee of up to five judges – including a Judge Rapporteur. The Registry clerks draft a judgment based on the discussions held at the deliberation. The Judge Rapporteur reviews the draft and sends it to the drafting committee. The drafting committee may further revise it, preparing it for a discussion at the second (and final) deliberation meeting.Footnote 58
The entire case processing system, conducted mostly behind the scenes under the cloaks of anonymity, works toward the institutional reproduction of judgments.Footnote 59 This largely disguises any given individual’s input. Case processing becomes a collective activity. It is the Registry’s clerks who process the case files and propel the system.Footnote 60 The degree of judges’ involvement is a matter of their personality and the importance of the case.Footnote 61 For example, Grand Chamber proceedings may require more involvement than those of single-judge formations. However, overall, when it comes to the case-writing process, “it is more the exception than the rule that the judges will intervene,” as one former judge explained. This is because “[judges] cannot handle the workload.”Footnote 62
Both the judges and the clerks acknowledged the importance of the Registry’s role in determining the Court’s working methods and the significance of the collaboration between the judges and the clerks.Footnote 63 One judge, in particular, laid out the Registry’s role as follows: “The judges often depend on the Registrars and their teams. Sometimes the cooperation goes so far that the clerk proposes a draft that will later be used by the judges as the basis for the judgment.”Footnote 64 Similarly, a senior clerk described his colleagues as “established civil servants” who have been in the system for a long time. He underlined that they are highly skilled in efficiently drafting judgments.Footnote 65 What was evident from these discussions was that this working method is the only viable way to process the Court’s overwhelming caseload.Footnote 66 It requires different groups of agents to cooperate, and it creates a sense of collective ownership over judgments.Footnote 67
This working method and these procedures are the most likely explanation for how the Court can enjoy a coherent common legal culture and formulate a collective purpose. As one Western European judge highlighted, “the system is stronger and larger than the individual. The system is sophisticated and absorptive. The Court remains ideologically homogenous, even with the new and changing personnel.”Footnote 68 This is why it is plausible to assume that Court’s motivations to be audacious and forbearing are not determined by only a few judges, but instead decided collectively. The Court’s permanent and temporary agents maintain a coherent narrative about the Court’s core concerns and priorities. Together, they may maintain or progress rights in line with their core objective as a human rights court or offer trade-offs in order to secure necessary resources for institutional survival. Regardless, they take this decision as a collective body – albeit the weight of their contributions may vary based on their roles and functions, with judges having the official responsibility of rendering judgments.
European Court at Different Phases of Its Existence
The European human rights system in its early days was different from the one we know today. This difference is primarily related to changes in its institutional design. Design changes are not simply structural reorganization, however. They have an important bearing on the Court’s autonomy and authority and by implication its zone of discretion, as we see in the following section.Footnote 69
The Old Court, 1959–1998: An Institution Built upon a Compromise
The European human rights regime was a product of the political climate in the aftermath of the Second World War.Footnote 70 From the devastation that the War brought along still in living memory, European leaders agreed to create a regional human rights regime. Its constitutive treaty, the European Convention, was written in reaction to the atrocities committed during the War.Footnote 71 Representing a clear break from the past, this regime was created to embody European values, to prevent democracies from relapsing into dictatorships,Footnote 72 and to contain the threat of a communist expansion in Europe.Footnote 73
The Convention took legal effect in 1953, three years after its approval in Rome. The document included a range of civil and political rights, such as the right to life; freedom from slavery; the right to a fair trial; freedom of expression; and freedom of thought, conscience, and religion. The original signatories were the governments of Belgium, Denmark, France, Germany, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Norway, the Saar Protectorate, Turkey, and the United Kingdom. The enactment of the Convention was the first step in launching the European human rights regime. This regime would then go on to shape the political and legal landscape in Europe, becoming an authoritative forum for human rights protection.Footnote 74
The circumstances surrounding the creation of the European human rights regime were not free from controversy. The most glaring of those was the fact that some of the founding members were colonial powers at the time of the Convention’s drafting. The French and the British took the lead in drafting the Convention, even as they were implicated in serious human rights violations within their colonies.Footnote 75 Their colonial heritage was reflected in the way the Convention was written, giving the impression that the rights safeguarded were for only “a select group of individuals.”Footnote 76 Take, for example, Article 56 (territorial application clause). This infamous colonial clause acknowledged the existence of “overseas territories” and specified that it was up to member states to choose whether to extend the Convention to “all or any of the territories for whose international relations it is responsible.” This effectively meant that this protection system, created for Europeans, would not automatically be applied to those people living in European colonies.
Although the drafters agreed on this particular matter, they disagreed about others. At the June 1950 Conference in Strasbourg, where the Convention’s text was finalised, the drafters argued over whether to create a supranational tribunal and how much power to give it. This matter immediately became a point of contestation because this supranational court would receive complaints brought by member states against other states (interstate complaints) and individuals against states (individual applications). The very idea of a regional court spurred spirited discussions during the drafting sessions.Footnote 77 Member states were wary about the sovereignty cost of establishing a supranational review mechanism.Footnote 78 To the sceptics, this effectively meant that member states’ domestic affairs would be under the scrutiny of a European Court. Allowing individuals to bring cases before the Court appeared equally threatening. Communist sympathisers and other figures aiming to discredit the West could activate the Court for disingenuous reasons.Footnote 79 On the other hand, supporters of the supranational court believed that the European human rights regime could not be fully realised without it. A clear majority of the countries – such as Denmark, Greece, Netherlands, Norway, Sweden, Turkey, and the United Kingdom – were in the sceptical camp, and only Belgium, France, Ireland, and Italy were in favour.Footnote 80
Belgium, France, Greece, Ireland, Italy, Luxembourg, Sweden, and Turkey proposed a compromise. According to this new scheme, member states could choose whether to accept the Court’s jurisdiction or to allow the individuals’ right to bring cases before the Court (right to petition). Even though the Netherlands and the United Kingdom – two colonial powers at the time – strongly rejected this proposal initially, these two compromise clauses resolved the differences between member states at the time of the Convention’s adoption in 1950.Footnote 81 The Convention, therefore, did not automatically require a loss of sovereignty to supranational review, but left the choice to the member states.Footnote 82 Accepting the Court’s jurisdiction and an individual’s right to petition remained optional until the introduction of Protocol 11 in 1998.
In the same spirit, the original design features of the European human rights regime favoured a more limited and state-centric course of action.Footnote 83 The regime was created as a two-tier system composed of one quasi-judicial filtering mechanism and one judicial body.Footnote 84 In the first tier, the European Commission of Human Rights (established in 1954) would receive individual complaints and decide their admissibility.Footnote 85 It would then launch the cases that it deemed admissible before the Court on behalf of the individual applicants if the responding state recognised the Court’s jurisdiction.Footnote 86 This model gave a more prominent role to the Commission which functioned as a quasi-judicial filter and carried out initial screening of individual applications.Footnote 87 In the second tier, the European Court of Human Rights (the Court, founded in 1959), would review the cases referred by either the Commission or another member state.
These design features yielded limited authority and autonomy and thereby a narrow zone of discretion.Footnote 88 What limited the Court’s zone of discretion was the compromise upon which the system was created: optional jurisdiction and right of individual petition. These two conditions would severely limit the individuals’ access to the Court and the inflow of cases. In the early days, few countries accepted individual petition rights or the Court’s jurisdiction. At the time the Convention entered into force in 1953, only Denmark, Ireland, and Sweden agreed to grant the right of individual petition. Denmark and Ireland were the sole members that accepted the Court’s jurisdiction.Footnote 89 Even when states submitted to the Court’s jurisdiction, they did not do so unconditionally but often on two-to-five-year renewable terms. As a result, few cases reached the Commission and the Court, and both operated only on a part-time basis and met when needed.Footnote 90
Member states’ initial resistance to being fully on board sent a clear signal to the Court and the Commission that they had to be cautious to offset this resistance. In order to prove that the system was not there to threaten the member states, the Court and the Commission carried out their legal functions with diplomatic sensitivity.Footnote 91 This was a specific form of tactical balancing that led the Court and the Commission to adopt more conservative positions in the 1950s and 1960s.Footnote 92 They each paid greater attention to member states’ national interests and provided both legal and extra-legal solutions to the disputes at hand, as Mikael Rask Madsen finds in his study.Footnote 93
This cautious approach limited the number and nature of decisions in the early period. As Sir Humphrey Waldock – then President of the Commission – explained, they were not there to name and shame member states. Rather, their main function was “to conduct confidential negotiations with the parties and to try and set right unobtrusively any breach of human rights that may have occurred.”Footnote 94 Underscoring their diplomatic role, he emphasised that the Commission “was not primarily established for the purpose of putting states in the dock and registering convictions against them.”Footnote 95 He signalled that the European human rights regime would not be the forum to discredit the West at the height of the Cold War rivalry. Following this logic, the Commission adopted a stringent approach when deciding on the admissibility of cases in the early days.Footnote 96 The Court contributed to this diplomatic effort by showing deference to domestic authorities with regard to protecting rights and delivering justice.Footnote 97 The most effective tools for deference were the margin of appreciation doctrine and Article 15 (derogation clause).Footnote 98 The former granted the member states flexibility in fulfilling their Convention obligations, and the latter allowed states to reduce some of their obligations in times of emergency – except for the provisions concerning torture, slavery, servitude, right to life, and punishment without law.Footnote 99
These strategies must have surely worked, because in the early 1970s, there was a sudden increase in the number of ratifications and acceptance of optional clauses – that is, submission to the Court’s jurisdiction and the right to individual petition.Footnote 100 By 1974, thirteen out of eighteen member states accepted the optional clauses.Footnote 101 As confidence in the European human rights regime grew stronger over the decades, more member states accepted the individual petition right. By 1990, all member states (twenty-two at the time) allowed their citizens to bring cases before the European Court.Footnote 102 This trend decreased the need for legal diplomacy and increased the flow of cases into the Court’s docket. The Court had effectively boosted its autonomy and authority.Footnote 103
The end of the Cold War contributed to this upward trend. When the formerly communist countries joined the ranks of the Council of Europe, the Court’s reputation and caseload exponentially grew due to what has become known as the “Eastward expansion.” The expansion started in 1990 when Hungary ratified the Convention and became a Council of Europe member. Within a few years, the number of member states grew from twenty-one to forty-one. The European human rights regime significantly broadened its geographical reach when Russia, the largest country in Europe, ratified the Convention in 1998.
The war in the Former Yugoslavia had propelled the expansion of the European human rights regime. Europe was stunned and horrified by another war on the continent in which gross human rights violations were being committed. As a response, the Council of Europe member states issued the Vienna Declaration of October 9, 1993.Footnote 104 Members extended their invitation to the newly independent countries and declared that new members’ accession to the Convention System would be “a central factor in the process of European construction.” This invitation marked a colossal shift in the European human rights system’s objectives, from that of fine-tuning well-functioning democracies to helping countries transition to democracy.
Shortly after ratification, the new members accepted the Court’s jurisdiction and individual petition right.Footnote 105 In the aftermath, the Court was entrusted not only with a new role but also with an exponentially growing caseload.Footnote 106 There already had been steady growth in the number of applications since the 1980s; this further escalated with the Eastward expansion. The number of applications increased from 404 in 1981 to 4,750 in 1997.Footnote 107 The Court began having trouble clearing its docket and faced a different challenge: a large backlog of cases.Footnote 108
Protocol 11 was introduced to tackle the caseload problem in 1998. This protocol also reversed the compromise made during the drafting of the Convention and created the European human rights system as we know it now. It abolished the Commission and created the new Court with compulsory jurisdiction. The new Court would work on a full-time basis and receive applications directly from the individual complainants.Footnote 109 As one judge explained, the system’s structural transformation represented a colossal change in the Court’s approach. The Commission’s abolition increased “the rhythm and the pace” of legal evolution.Footnote 110 The Court began receiving cases that it would not normally have received. This presented the Court with an opportunity to launch the legal change analyzed in Chapters 3 and 4.
The New Court: From Euphoria to Reform
The new institutional setup of the new Court yielded more autonomy and authority, but it did not guarantee smooth sailing. The 1990s brought not only major new opportunities for the Court but also major challenges. First came euphoria about the expansion of the European human rights regime with the inclusion of the former socialist countries in the East. Then came waves of reform initiatives attempting to limit the Court’s roles and functions.Footnote 111
Once the Eastward expansion was completed in the early 2000s, the Court was charged with reviewing human rights practices of an entire region of nearly 800 million people. In addition to the increase in the volume of applications, the nature of issues brought before the Court changed in this period. Until the 1990s, the Court received cases only from states with long democratic traditions.Footnote 112 After the expansion, the cases coming from new members included entrenched problems, such as systemic violations openly targeting ethnic groups or the lack of sufficient domestic remedies.Footnote 113 These cases indicated a need to instruct such countries in European human rights standards. Therefore, the Court often took a pedagogical role in cultivating human rights traditions in the newly independent countries.Footnote 114
Although the increased caseload posed an administrative challenge to the Court, it also reinforced its institutional authority. Motivated by a political ambition to consolidate their democracies, the formerly communist states were eager to respect the Court’s authority. As Michael O’Boyle, former Deputy Registrar of the Court, explains: “while adding significantly to the Court’s docket, [the Eastward expansion] has arguably not weakened or undermined the system but strengthened it. It has created a new and unexpected geopolitical dimension for the institution which ipso facto engenders renewed political support.”Footnote 115
The Court had been crippled with insurmountable caseloads and delays in the implementation of judgments since the early 2000s. To address these problems, member states initiated a series of reform proposals, which spurred structural and behavioural changes – starting the era of the reformed Court. First, member states introduced additional protocols to the Convention and generated significant structural changes. The most important such development came in 2010 with Protocol 14. This protocol modified the Court’s internal organization. The original one-judge-per-member-state rule remained the same.Footnote 116 Yet, judges’ terms of office changed from six years renewable to nine years nonrenewable.Footnote 117 The protocol also revamped the admissibility criteria to simplify the application process,Footnote 118 and changed the Court’s composition to include the following units that are used today: single-judge formations, Committees of three judges, Chambers of seven judges, and Grand Chambers of seventeen judges. These changes – especially the single-judge filtering mechanisms and the three-judge committees – were much needed to tackle the increasing caseload and to streamline the case processing procedures. After this restructuring, the Court announced in October 2013 that its backlog had been reduced from 160,200 in 2011 to 111,350.Footnote 119
Member states have also started a dialogue to address the challenges that the new Court had been facing. They initiated a series of High-Level Conferences on the Future of the Court in Interlaken, Switzerland; İzmir, Turkey; Brighton, the United Kingdom; Brussels, Belgium; and Copenhagen, Denmark, between 2010 and 2018. All of these meetings gathered ministers or high-level officials from each Council of Europe member states. Meetings were concluded with declarations that serve as road maps to improving the European human rights regime. What is striking about these declarations is that they gave the member states the opportunity to express their visions for the Court and the extent of its functions while also suggesting practical measures to address the backlog of cases. According to Judge Spano, former President of the European Court, these meetings heralded the dawn of “the age of subsidiarity,” re-emphasizing that the supranational review carried out by the Court is subsidiary to the one provided at the national level.Footnote 120 Indeed, these meetings represented a turning point in the Court’s reform history and influenced the way the Court carries out its judicial functions today.Footnote 121 For this reason, I call the post-2010 Court the “reformed” Court and highlight ways in which its practices differed from the new Court. This distinction allows me to assess the influence of the reform process on the Court’s interpretive preferences and tendencies for forbearing or audacious interpretations.
The reform Court period is still underway, with the Court facing further structural changes and political challenges.Footnote 122 For example, the Committee of Ministers adopted two additional protocols amending and adding to the European Convention. Protocol 15, which entered into force on August 1, 2021, amends the Convention by setting out changes to the case processing mechanism and the Preamble. Notably, it reduces the time limit to bring an application before the European Court from six months to four months, and adds the principle of subsidiarity and margin of appreciation to the Preamble. Protocol 16, on the other hand, adds to the Convention and enables national courts to seek advisory opinions from the Court. Protocol 16 came into force on August 1, 2018, in respect of sixteen member states that ratified it: Albania, Andorra, Armenia, Bosnia and Herzegovina, Estonia, Finland, France, Georgia, Greece, Lithuania, Luxembourg, Netherlands, San Marino, Slovak Republic, Slovenia, and Ukraine.Footnote 123
In addition to these structural changes, the Council of Europe and the reformed Court have been confronted with several political challenges. These range from Turkey’s withdrawal from the Istanbul Convention on Violence against Women in March 2021 to the Russian invasion of Ukraine in February 2022. The Council of Europe condemned Russia, and both the Parliamentary Assembly and the Committee of Ministers arrived at the conclusion that Russia “can no longer be a member state.”Footnote 124 In the meantime, the European Court granted urgent interim measures on 1 March, 2022, underlining that “the current military action which commenced on 24 February 2022 in various parts of Ukraine (…) gives rise to a real and continuing risk of serious violations of the Convention rights of the civilian population.”Footnote 125 Before the Committee of Ministers took a vote on expelling Russia, Russia announced its withdrawal from the Council of Europe and the European Convention on Human Rights.Footnote 126 While Russia’s withdrawal, or Rexit, is likely to ease the Court’s caseload (since 24.20% of all pending cases concern Russia, according to the Court’s 2021 statistics), this will imply a serious gap in the protection of the rights both in Russia and in Ukraine with respect to violations perpetrated by Russia.Footnote 127 As Chapter 3 will show, cases brought against Russia constitute a clear majority of the Article 3 jurisprudence.
Conclusion
This chapter is composed of two connected parts. The first part has looked at the European Court of Human Rights’ inner workings and the way it functions. Expanding this assessment beyond the elected judges, the chapter has argued that the Court defines its organizational priorities as a collective body. This collective body includes not only the judges elected for limited terms but also law clerks and other legal professionals at the Registry, most of whom are hired on a permanent basis. This essentially implies that all members of the judicial elite working at the Court contribute to defining the Court’s collective purpose and determining if there is a need for tactical balancing – thus shaping the tendency for forbearance or audacity. The second part has offered a historical overview of the Court’s institutional transformation. Created in 1959, the European Court once operated as a part-time institution. The Court then became a full-time institution in 1998; its structure was further refined during the reform processes that officially began with the first High-Level Conference on the Future of the Court in 2010.
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