At a time when decisions by the US Supreme Court to deny certiorari elicit some controversy, the European Court of Human Rights (ECtHR) provides a useful reminder of what could happen to review courts that lack the authority to pick and choose their cases. The ECtHR allows about 800 million citizens from 47 countries to file appeals that their government has violated a right protected by the European Convention on Human Rights and that their domestic legal system has failed to rectify said violation. By most standards, the ECtHR has been an enormous success. It has led to measurable policy change on issues such as torture, gay rights, property rights, and above all the right to free and fair trials. Indeed, it has been so successful that it now has a backlog of almost 100,000 applications that are awaiting decisions on admissibility and merit.
One of the many issues responsible for this backlog is that the Court is not allowed to pick and choose which cases it deems most important. If a case satisfies formal admissibility requirements, the Court has to issue a ruling on the merit. Against this backdrop comes the ECtHR’s Grand Chamber Micallef v. Malta judgment. The case results from a civil dispute in 1985 about whether mrs Micaleff had the right to hang some laundry from her window above her downstairs neighbor’s courtyard. The neighbor applied for and received an injunction from a court to restrain the laundry from infringing on her property. The dispute is about the fairness of these court proceedings as there were family ties between a judge and the lawyers who argued the case on the neighbor’s behalf. The ECtHR agreed with mrs. Micaleff, and ordered the Maltese government to pay 2000 euros (about $3000) for the cost of legal proceedings. Unfortunately, mrs. Micaleff had passed away in the 24 years it took proceedings to reach the ECtHR, so she never received justice for her travails (her brother filed the suit).
The silliness of all of this was not lost on the court’s judges. Four of the ECtHR’s judges (including its president) argued in a dissent that:
The disproportion between the triviality of the facts and the extensive use – or rather over-use – of court proceedings is an affront to good sense, especially as serious human-rights violations subsist in a number of States Parties. Is it really the role of our Court to determine cases such as this?
Indeed, at a time when Russian human rights lawyers who are trying to bring cases to the ECtHR are being murdered one would hope that the continent’s main human rights institution would be able to focus its attention on the more important matters. I may blog some more in the near future about the politics of reforming the ECtHR. It is a hot issue now, with the role of Russia front and center.
h/t ECHR blog