1.1 Goals and Limitations

This book analyzes the legal content and scope of the right to an effective domestic remedy in Article 13 of the European Convention on Human Rights (hereinafter the Convention or the ECHR),Footnote ¹ as construed and applied in the case law of the European Court of Human Rights (hereinafter the Court or the ECtHR).Footnote ²

The book not only accounts for the current scope of Article 13, but the development in the Court’s case law.Footnote ³ These elements are both interconnected and independent. It is, on the one hand, not possible to account for the content of law without having, at the very least, a sense of how law has developed. The present is always understood in the light of the past. This is not only a realization of general hermeneutics,Footnote ⁴ but is firmly present in the legal method applied by the Court, not least when it considers whether its interpretation should be dynamical or not. On the other hand, knowing the past has independent historical value, and knowing the current content of law, is the primary task of lawyers working in practice.

Given the enormous amount of case law from the Court, it is not possible to give an exhaustive account of every judgment and decision in which the Court has dealt with Article 13, nor is it desirable. Facts, details, and tensions in a rapidly expanding case law would distort the general picture. However, the book provides an exhaustive overview of the requirements stemming from Article 13, as they present themselves in the Court’s case law, including how they have been developed. The depth and amount of detail of the analyses are guided by three lines of thought: (1) the need for clarification (e.g. because of unclear, contradicting, or a lack of case law), (2) the development in the case law, and (3) the potential for achieving a more subsidiary and effective protection of human rights. This third element is closely related to the second goal of this book, which I return to shortly.

The focus on clarifying what the Court requires and has required, under Article 13, has several consequences.

• First, this book does not analyze ideal practices of remedies at the domestic level. Indeed, the Court sets out minimum standards, not an ideal level of protection.Footnote ⁵ This is reflected in the fact that the Court, also under Article 13, affords States a margin of appreciation (Chapter 8). Consequently, for the search of an ideal remedy, the specific remedial structures of Member States must be taken into account, and the discretion that the Court grants left out. In any case, the judgments of the Court rarely provide examples of best practices, but controversial practices, which, arguably, violate the Convention.Footnote ⁶

• Second, Article 13 deals with legal remedies (legal requirements concerning remedies, according to Article 13). But nonlegal remedies, and various nonlegal measures, may certainly be important for the effectiveness of the remedial task and, implicitly, legal remedies, for instance, measures concerning education and professional training, electronic communication, and general information.Footnote ⁷ Indeed, such measures may, under other circumstances, constitute legal remedies (i.e. if the Court had construed the legal requirements differently) but are not dealt with in this book. That being said, the distinction between legal remedies and nonlegal remedies is not always easy to draw – in particular, because of the (legal) requirement that the remedy be effective not only in theory but also in practice (Section 9.4).

• Third, when analyzing the legal content of Article 13, both the past and current scope of Article 13 must be read in context with other rights and principles in the Convention.Footnote ⁸ However, many such relationships would have deserved a more thorough and maybe different treatment than that which I provide in this book. Indeed, the guiding criterion of “need for clarification” mostly only implies that I demonstrate this need. I do not always provide a fully fledged account of how I perceive that the question should be clarified. The relationship between Article 13 and similar procedural and remedial requirements under substantive Articles, in particular the positive obligation to secure substantive rights, is one such area. This limitation, however, leads me to the second and normative goal of this book.

In principle, a normative analysis of every requirement in Article 13, including its relationship with other rights and principles in the Convention, could be undertaken. But the normative goal of this book is primarily to illustrate and provide advice concerning the role Article 13 could have in the system of protection of human rights under the Convention. By that I mean the role Article 13 could have in regulating, more generally, the relationship between international and national protection of human rights. In this respect, the developing notion of subsidiarity is essential. This analysis is chiefly undertaken in Chapters 12 and 13, whereas the more descriptive analyses of case law are undertaken in Chapters 2 to 11. That being said, Chapters 2 to 11 also contain specific normative considerations, but then mostly only to the extent that they are necessary prerequisites for the global normative recommendations in the concluding Chapter 13. Certainly, many other specific legal questions arising under Article 13 and relationships between Article 13 and other rights and principles would have deserved a more independent normative analysis and evaluation. I can only hope that the descriptive and normative analyses that I have undertaken may serve as a fundament for further study.

In the remainder of this introductory chapter, I provide brief overviews of the content of Article 13 (Section 1.2) and the uncertainty and (evolving) development in the Court’s case law (Section 1.3).

1.2 Article 13 in Brief

Article 13 of the ECHR aims to enforce substantive Convention rights at the domestic level.

The English version reads:

The French version reads:

The French wording “recours” only includes a right to effective access to a national authority that can determine whether substantive Convention rights have been violated, but the English wording “remedy” also includes a right to redress.Footnote ⁹ In the early legal literature, some claimed that the Court and the former European Commission on Human Rights (hereinafter the Commission) had opted for an interpretation in line with the French wording,Footnote ¹⁰ but the subsequent case law confirms that Article 13 contains both a right to access to justice and a right to redress at the national level for violations of Convention rights.Footnote ¹¹ The right to redress includes a right to enforcement of any redress awarded.Footnote ¹²

The French wording “a droit à l’octroi” could indicate that the right to an effective remedy needs not to exist per se but could be granted or bestowed by a decision in individual cases. However, the English wording “shall have an effective remedy” includes an individual right that must exist per se.Footnote ¹³ The case law of the Court confirms that the English wording must be followed and that the inclusion of “à l’octroi” was merely stylistic.Footnote ¹⁴

The wording further indicates that Article 13 only comes into play when other rights and freedoms in the Convention actually “are violated” (“ont été violés”).Footnote ¹⁵ In early case law, Article 13 was understood in this manner. However, subsequent case law makes clear that it suffices that the principal claim – the violation of a substantive right – be arguable.Footnote ¹⁶ As a result, Article 13 contains a double standard of interference: (1) a substantive right must, arguably, have been violated and (2) the right to an effective remedy must have been violated.

Since Article 13 only comes into play if substantive rights in the Convention have, arguably, been violated, it is often stated that Article 13 is auxiliary to the substantive rights and,Footnote ¹⁷ in the extension, that Article 13 only provides a procedural right.Footnote ¹⁸ However, this conception is only fitting with regard to the right to access to justice, which concerns the process and form in which arguable (substantive) claims must be heard and decided at the domestic level.Footnote ¹⁹ The right to redress, in contrast, is a substantive and independent right, which grants the right to some form of (substantive and not merely procedural) redress.Footnote ²⁰

The latter part of the wording, “notwithstanding that the violation has been committed by persons acting in an official capacity,” is, at first glance, confusing and seems unnecessary.Footnote ²¹ A violation could usually be traced back to some person or entity acting in an “official capacity”: Why is it necessary to spell that out in plain language? However, the aim is to specify that the State must provide an effective remedy even if the individual causing the violation has some form of immunity according to national or international law.Footnote ²² Nevertheless, this wording has been used as an argument to exclude the challenging of primary legislation, as such, from the scope of application of Article 13 (Section 10.5.3.3). And some have used it as an argument in support of the view that the Convention must have direct horizontal effect (Drittwirkung) between third parties.Footnote ²³ However, in the case law of the Court, there is no indication that Article 13 goes this far.Footnote ²⁴ That being said, there must be a remedy against the State, or organs or persons of the State, when the State has violated positive obligations under the Convention.Footnote ²⁵ In this sense, one could speak of an indirect horizontal effect.Footnote ²⁶ And, depending on the remedies available at domestic level, Article 13 may require that procedures between private parties be initiated in order to achieve sufficient redress, for instance, sufficient compensation,Footnote ²⁷ or because Article 13 requires effective investigations.Footnote ²⁸

However, Article 13 not only grants a right for the individual but is an important expression of the principle of subsidiarity upon which the system for the protection of human rights under the Convention is based.Footnote ²⁹ Indeed, the primary responsibility for safeguarding Convention rights lies with the Contracting States and the Convention system is subsidiary to national systems for the safeguarding of human rights. Other important expressions of this principle are found in Articles 1, 35, and 46 of the Convention. In fact, these Articles, including Article 13, are considered to be the “key provisions underlying the Convention’s human rights protection system.”Footnote ³⁰ A truly subsidiary protection would be realized if States actually fulfilled their primary obligation to secure Convention rights, as foreseen in Article 1, so that violations do not occur. But even if violations occur, it would not be necessary to turn to Strasbourg if they are remedied at home. To accommodate and allow States to realize this secondary goal, Article 35(1) provides that all domestic remedies must be exhausted before the Court may deal with the matter. Lastly, Article 46 obliges States to abide by the final judgment of the Court in any case to which they are parties and sets out a procedure for the supervision of the execution of the Court’s judgment.

But subsidiarity also applies to the Court and other Convention organs. States are, for example, granted a certain leeway in the interpretation and application of the Convention, of which the margin of appreciation doctrine is the most well-known expression. Consequently, the Court’s interpretation and application of Article 13, as an expression of subsidiarity, is central to the cooperative relationship between the international level (the Convention, the Court, and the Committee of Ministers) and the national level (in particular, courts, other national remedial authorities, legislators, and the governmental branch). I provide my (normative) answer as to what extent such systemic considerations should influence how the Court construes and applies Article 13 in the concluding chapter (Chapter 13).

1.3 Uncertainty and Development

In international law, the right to an effective remedy is a relatively new phenomenon, which only appeared in international treaties in the aftermath of the Second World War.Footnote ³¹

Ever since the inception of the Convention, there has been considerable doubt concerning the content and scope of the obligations arising from Article 13. The famous and much cited quotation from the dissenting opinion of Judges Matscher and Pinheiros Farinha in Malone v. UK (Plenary 1984) is illustrative: “We recognise that Article 13 constitutes one of the most obscure clauses in the Convention and that its application raises extremely difficult and complicated problems of interpretation. This is probably the reason why, for approximately two decades, the Convention institutions avoided analysing this provision, for the most part advancing barely convincing reasons.”Footnote ³²

And even though the Court has dealt with Article 13 in a number of judgments and decisions thereafter, the content and scope remain uncertain.Footnote ³³ In early years, most monist countries even held that the notion of effectiveness was so imprecise that it did not lend itself to direct applicability. Article 13 was not self-executing.Footnote ³⁴

Initially, the Court adopted a restrictive interpretation and application of Article 13.Footnote ³⁵ In recent years, however, the Court has reinforced the scope and application of Article 13.Footnote ³⁶ The most prominent example is the use of Article 13 in cases concerning excessive lengths of proceedings violating Article 6(1). Until Kudla v. Poland (Grand Chamber 2000), the Court held that Article 13 was consumed by Article 6(1), but then reconsidered its case law and found it necessary to examine whether Article 13 had also been violated.Footnote ³⁷ The Court acknowledged that an aggregate of several remedies could satisfy Article 13, but found that the Polish Government had not indicated whether, and, if so how, the applicant could obtain relief – either preventive or compensatory – by taking recourse to the remedies proposed by the Polish Government.Footnote ³⁸ The Court did not indicate the preventive and/or compensatory measures necessary to obtain appropriate relief, either generally (e.g. compensation is required under the following circumstances …) or concretely (e.g. compensation is required in cases such as this one). The choice of preventive and/or compensatory measures was, therefore, left within the margin of appreciation of the State. However, in Scordino v. Italy (no. 1) (Grand Chamber 2006), the Court went one step further and held that there is a “strong but rebuttable presumption” that excessively long proceedings occasion nonpecuniary damage.Footnote ³⁹

Judges in the Court have divergent opinions with regard to how this reinforcement should be performed (or not). A few examples from the case law are illustrative. In her dissenting opinion in Zavoloka v. Latvia (2009), Judge Ziemele, for example, held that whether the potential of Article 13 could be fulfilled in a different manner was debated within the Court, in particular when seen in the light of the Court’s case load, which illustrated the necessity of improving domestic remedies in a number of States. In Grosaru v. Romania (2010), Judge Ziemele was more concrete and held that the Court should have elaborated specifically on what was required of the remedy in the case in hand.Footnote ⁴⁰ In Maksimov v. Russia (2010), Judges Spielmann and Malinverni found that Russia had not provided an effective remedy to claim compensation for a violation of Article 3. They pointed to the principle of subsidiarity and held that the Court should develop its interpretation of Article 13 by requiring that an effective remedy included an examination based upon criteria set out by the Court so as to force States “to ensure that the Convention is effectively incorporated in the domestic court’s application of the law.”Footnote ⁴¹ And, in Bozkır a.o. v. Turkey (2013), Judge Keller argued that the independent nature and violation of Article 13 should lead to a larger amount of compensation under Article 41.Footnote ⁴²

At the same time, the Court is reinforcing the scope of its own remedial powers,Footnote ⁴³ the most notable example being the introduction of the Pilot judgment procedure,Footnote ⁴⁴ and increasingly includes procedural and remedial requirements under substantive Articles.Footnote ⁴⁵

The Court has provided little justification for reinforcing the scope and application of Article 13. But, when a justification is given, it usually includes a reference to the principle of subsidiarity and the case load of the Court.Footnote ⁴⁶ And even if no such reference is provided, the factual background is there for everyone to see: The Court is overwhelmed by applications, both well-founded and ill founded. Between the end of the 1990s and the years 2000–2011, the backlog was increasing rapidly and to an extent which threatened to strangle the Court. Indeed, by the end of 2010, the backlog had reached 139,650 cases, a growth of about 20,000 cases since the end of 2009,Footnote ⁴⁷ and by the end of 2011, the backlog had reached 151,600 cases.Footnote ⁴⁸ However, by the end of 2012, the backlog had been reduced to 128,100 cases, by the end of 2013, to 99,900 cases, by the end of 2014, to 69,900 cases, and by the end of 2015, to 64,850 cases. The main reason for this, however, was not a reduction of incoming applications, but the impact of the Single judge procedure introduced by Protocol 14 (now regulated in Articles 26 and 27 of the ECHR).Footnote ⁴⁹ It is illustrative that in 2011, over 100,000 applications were allocated to a Single judge formation, a number, which by the end of 2015, was at 3,200 cases.Footnote ⁵⁰ In addition, the Pilot judgment procedure has allowed the Court to “dispose of thousands of repetitive applications, either by sending them back to new domestic remedies, or on the basis of mass settlements offered by the respondent State.”Footnote ⁵¹ Further, the Court and its Secretariat has initiated several other requirements, procedures, and changes to reduce the backlog and effectively deal with the case load.Footnote ⁵² Notwithstanding this, the number of applications remains extremely high. Thus, even though Court has become more efficient, the case load (and the case law) is evidence that many countries have considerable problems in the protection of human rights at national level. In fact, it seems as though the Court currently is able to deal with the incoming inadmissible and repetitive cases, whereas it still has a hurdle to overcome concerning admissible nonrepetitive cases. It is illustrative, that out of the 64,850 cases on the docket at the end of 2015, only 30,500 were repetitive cases, whereas 11,500 were priority cases, and 19,600 were normal nonrepetitive cases.Footnote ⁵³ At the end of 2016, the Court’s backlog had again increased, from 64,850 to 79,750 pending applications.Footnote ⁵⁴ However, the reason for this was not a drop in efficiency on part of the Court, but the fact that a higher number of incoming cases were allocated to a judicial formation and that the Court focused on adjudicating priority cases.Footnote ⁵⁵ Indeed, at the end of 2017, the Court’s backlog was again reduced to 56,250 cases,Footnote ⁵⁶ but has since remained relatively stable at 56,350 cases at the end of 2018, 59,800 cases at the end of 2019, and 62,000 cases at the end of 2020.Footnote ⁵⁷ Consequently, the current challenge for the Convention system is to adjudicate the approximately 23,000 normal nonrepetitive cases and improve the domestic protection and enforcement of human rights.Footnote ⁵⁸

Clearly, Article 13 could play a crucial role in improving the domestic protection of human rights and, thereby, contribute to a more subsidiary protection of human rights.Footnote ⁵⁹ Indeed, in order to enhance subsidiarity, many have called for a more expansive interpretation and a stricter application of Article 13.Footnote ⁶⁰ However, this is not unproblematical. It may, at least in the short run, increase the case load of the Court and lead to a reduction of sovereignty in fields that States wish to control. Indeed, a perceived conflict between sovereignty and the effective protection of human rights presents itself, in some way, in almost every area of the law and politics of human rights.Footnote ⁶¹ This conflict is clearly visible in the process of reform of the Convention and the Court,Footnote ⁶² to which the latest additions are the Interlaken Declaration (2010),Footnote ⁶³ the Izmir Declaration (2011),Footnote ⁶⁴ the Brighton Declaration (2012),Footnote ⁶⁵ the Brussels Declaration (2015),Footnote ⁶⁶ and the Copenhagen declaration (2018).Footnote ⁶⁷ This process has, inter alia, resulted in the adoption of Protocols 15 and 16. At every occasion, the primary responsibility of States to adhere to the obligations arising from the Convention has been underlined, while at the same time emphasizing that the principle of subsidiarity implies a shared responsibility between the Contracting States and the Court (the primary responsibility of States goes hand in hand with a subsidiary review by the Court).Footnote ⁶⁸ Indeed, the Court is called upon to take its subsidiary role in the interpretation and application of the Convention fully into account.Footnote ⁶⁹ But this call is ambiguous. On the one hand, it could be taken as a general plea to show greater restraint in the interpretation and application of the Convention (including Article 13),Footnote ⁷⁰ and, on the other hand, as an invitation for the Court to contribute to the improvement of the national implementation and enforcement of the Convention (by enforcing the primary responsibility of States), to which a stricter interpretation and application of Article 13 may contribute. Similarly, the new references to subsidiarity and margin of appreciation in the Preamble, introduced by Protocol 15, could be taken as arguments for a stricter interpretation and application of specific rights, or as an invitation to apply a more lenient interpretation and application.Footnote ⁷¹ Independently of the view that one takes on this question, the addition reflects real concern about the jurisdiction of the Court and the way in which it interprets and applies the Convention, at least on the part of some States.Footnote ⁷² Thus, the reform process sheds light on more profound issues, such as, for example, the purpose and content of the right to an individual application to the Court and how the relationship between domestic authorities and the Court should be, including the extent of the Court’s review.Footnote ⁷³ Article 13 may be a tool to mitigate such systemic concerns. I provide my opinion as to how in the concluding Chapter 13.