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‘Realism’, ‘perfectionism’ and the European Court of Human Rights

Professor Luzius Wildhaber, left, talks to Professor Steven Greer

Professor Luzius Wildhaber, left, talks to Professor Steven Greer

23 March 2010

Professor Luzius Wildhaber, former President of the European Court of Human Rights, is collaborating in a research project with Steven Greer, Professor of Human Rights in the School of Law.

Research collaboration between judges, academic lawyers and social scientists is uncommon, even when the judge himself is also a distinguished academic. But it can lead to some illuminating insights. Greer first met Wildhaber on a visit to Strasbourg, the home of the European Court of Human Rights, in January 2004 when completing research for his book, The European Convention on Human Rights: Achievements, Problems and Prospects, that was subsequently shortlisted for the Hart Socio-Legal Book Prize 2008. This work builds on an argument made by Wildhaber and others that the central function of the European Court of Human Rights should not be the delivery of ‘individual justice’ – thereby addressing alleged breaches of the European Convention on Human Rights primarily for the benefit of individual applicants – but instead it should concentrate much more on the delivery of ‘constitutional justice’. The main reason for this is that the European Court of Human Rights only has the capacity to adjudicate about five per cent of the 50,000 or so individual applications it currently receives per year. A key question, therefore, is how this five per cent should be selected.

The constitutional justice model argues that the current admissibility criteria are too wedded to individual justice and should be replaced by a ‘seriousness’ test which would mean two things: first, that only the most serious of the alleged Convention violations would be chosen for judgment, and second, that these should be settled not just for the benefit of individual applicants, but also in the interests of the many actual and/or potential victims whose interests the applicants could be said to represent.

The European Court of Human Rights only has a capacity to adjudicate about five per cent of the 50,000 or so applications it receives per year

However, although this ‘constitution-alisation thesis’ is increasingly the hub around which the debate about the future of the Convention system now revolves, it is not uncontroversial. Its key implication – that only applications alleging serious Convention violations should proceed to judgment – was, for example, vigorously opposed by Amnesty International and 113 other NGOs in 2004 in the closing stages of an official review of the Convention system. The review was prompted by the urgent need to find a solution to the Court’s burgeoning case-load and took over three years to conduct. But, in the event, it failed to deal with the problem effectively.

Less than a year after the reform package had been approved, and before it had been put into operation, the Council of Europe itself acknowledged that it would not improve things sufficiently and that further reform was therefore required. The crisis deepened in December 2006 when implementation was blocked by the Russian parliament. As a result, a pared-down version was introduced in the summer of 2009 for all of the Council of Europe’s 47 member states except Russia. This leaves complaints of Convention violation against Russia – the state with some of the gravest human rights problems in Europe – still governed by the discredited pre-reform procedures and the Court still drowning in a flood of individual applications.

The collaborative research upon which Greer and Wildhaber have embarked is linked to the constitutionalisation thesis but seeks to approach it from a fresh perspective. In his inaugural lecture as Professor of Human Rights in March 2008 – subsequently delivered in different forms in Malaysia, Australia and Croatia – Greer argued that human rights can be approached in five different ways. We can be indifferent to, or we can ignore them (‘indifference’). We can be hostile towards them and reject them in their entirety (‘hostility’). We can be ambivalent or sceptical about them, or accept them subject to significant reservations (‘scepticism’). We can endorse them realistically, acknowledging both their strengths and limitations, (‘realism’), or we can endorse them excessively by expecting more of them than they are capable of achieving (‘perfectionism’).

'Constitutional justice' is the only realistic model for case selection

Greer argues that ‘scepticism’, ‘realism’ and ‘perfectionism’ now dominate global debates, including those about the role and future of the European Court of Human Rights, and that ‘realism’ is the most convincing and viable of all. He claims that at the core of the Court’s problems lies a “debilitating lack of realism about what its priorities should be in post-Cold War Europe. For example, in spite of the fact that the case-overload crisis has visibly been gathering momentum for nearly 20 years, the official response has been characterised by inertia, excessive bureaucratisation, chronic indecisiveness, institutional incoherence and minimalism. There has also been a profound reluctance to consider thoroughly what the function of the Court should be in an international environment that is radically different from the one in the 1950s into which it emerged”. 

Wildhaber adds: “Almost from the moment of my arrival in Bristol, Steven and I began discussing a number of possible avenues for research collaboration. But the one I liked best was the challenge presented by seeking to explore the implications of his ‘scepticism-realism-perfectionism’ model for the European Court of Human Rights. Of course, unsurprisingly, neither of us finds much trace of scepticism there! But we each agree that ‘individual justice’ has now been thoroughly discredited as a model for case selection. It simply expects more than can possibly be delivered. This leaves ‘constitutional justice’ as the only realistic alternative both for admissibility and for adjudication.”

Greer and Wildhaber hope their collaborative project will contribute to the, as-yet unresolved, debate about the case-overload crisis. They also want it to stimulate discussion about how appropriate criteria for ‘realistic judgments’ can be identified, and what difference the application of those criteria might make.

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