The European System Assessed

In one line

The European system is the most effective human rights machinery ever built, and its four problems, caseload, uneven execution, political backlash and a gap in coverage, all follow from the same feature that makes it work, which is that individuals can compel a binding judgment against their own government.

The achievements

One: individual access that is real. Any person within the jurisdiction may apply, without needing a government's permission, a lawyer's fee at the outset, or a friendly State to espouse the claim. Nothing at universal level comes close.

Two: binding judgments with supervised execution. Article 46 and the Committee of Ministers convert a finding into a process, and the three components of execution, payment, individual measures and general measures, mean a judgment usually changes something beyond the applicant's own case.

Three: penetration of national law. The Convention has been incorporated in every party, so the great majority of Convention questions are now decided by national courts, which is the system working as designed.

Four: doctrine. Autonomous concepts, positive obligations, the living instrument, proportionality and the margin of appreciation have been borrowed by the Inter-American and African systems, by the treaty bodies, and by national courts far outside Europe, including India.

The problems

Caseload

The system nearly drowned in its own success. Individual access plus a rising number of parties produced a backlog measured in tens of thousands.

Three responses. Protocol 14 created single-judge inadmissibility decisions, three-judge committees for well-established case-law, and the no-significant-disadvantage filter. Protocol 15 cut the time limit to four months. The pilot judgment procedure identifies a systemic defect, indicates general measures and adjourns the clones.

The filters work by refusing cases, and the great majority of applications are declared inadmissible, mostly by a single judge with no reasoned judgment. That is a real cost to the promise of individual access.

Execution

Payment is usually made; general measures are not always taken. Cases remain under supervision for years where the violation is structural, and repetitive applications keep arriving because the underlying defect persists.

The infringement procedure under article 46(4) exists and is used sparingly, and what follows a finding of non-compliance is political.

Backlash

The most serious problem, because it goes to the system's foundation. From about 2010 several States argued that the Court had gone too far into questions national parliaments should decide.

Protocol 15's insertion of subsidiarity and the margin of appreciation into the preamble is that argument written into the treaty.

And the limit case is exit. A State that leaves the Council of Europe leaves the Convention, and its people lose the remedy. That is the ultimate weakness of a system built on membership of an organisation States join voluntarily.