Monday 17 September 2012

ELI Research Paper on Court's Case-(Over)Load

The European Law Institute (ELI) in Vienna has published a research paper on the case overload of the European Court of Human Rights. The paper was written by the Court's former registrar and future judge Paul Mahoney together with Luzius Wildhaber, Jean-Paul Jacqu√©, and Mark Entin. The report contains a lot of interwesting proposals to deal with the issue. However, it is notable that the report (at first glance at least) does not seem yet to mention that the caseload is finally becoming more manageable with a current decrease in the backlog for the first time in years. This is the Institute's press release about the report:

Since the single, permanent European Court of Human Rights (“the Court”) was set up under Protocol No. 11 to the European Court of Human Rights in 1998, the Court has not been able to dispose of cases at the same pace as they come in. Despite achieving remarkable productivity gains in the 12 years since 1998, the Court has so far never been in a position to reverse this imbalance between incoming and outgoing business.

In 2010, 61,300 new applications were allocated to a judicial formation (an increase of 7% compared with 2009), whereas a little over 41,000 applications were terminated (itself representing an increase of 16% on the results achieved in 2009). Thus, for the 5,000 or so new applications being allocated each month the average monthly deficit, inflating the number of pending applications, was almost 1,700.

On the other hand, the single‐judge formation, one of the innovations provided for in Protocol No. 14, has led to an increase of no less than 46% in comparison with 2010 in the number of applications (39,882) rejected as inadmissible or struck out in the first ten months of 2011. Despite this jump in productivity, the monthly deficit remains at 1,250 applications and the stock of pending applications has risen to the record height of almost 155,000 applications.

The mathematics is simple: the Convention system is bursting at the seams. The consequence of the constant imbalance between input and output is that the list of pending cases, the backlog (that is, the stock of all those applications not processed within what is considered to be a reasonable time) and the delays for applicants have been inexorably increasing each month. The metaphor of the death of the Convention system by slow suffocation has been used. What is sure is that if the trend of incoming applications outstripping decided cases continues, there must come a point where the Court is so overwhelmed that the breakdown of the Convention system will be inevitable.

The Working Party of the ELI, chaired by Paul Mahoney from the UK and assisted by an Advisory Committee consisting of senior judges and experts in the field, addressed the caseload at the Court. The result - the ELI Statement on “Case-Overload at the European Court of Human Rights” - aims to propose practical steps which can help the Court settle the backlog while at the same time maintaining the high quality of work.