1 Connecting Scholarship on Admissibility, Remedies, and Merits in Strasbourg
So extensive has scholarship on the European Convention on Human Rights (echr or Convention) and the European Court of Human Rights (the Court) become that within this academic field, entire sub-specialisations have developed. The substantive law is and remains the main subject of scholarship on the Court. This then concerns the meaning of specific Convention rights, the obligations following from them for both states and private actors, and the justifications of restrictions on those rights. But in addition to this, the last decade or two also witnessed a fast-evolving scholarship on topics such as the Court’s ‘proceduralisation’,1 subsidiarity and the margin of appreciation or on state compliance. Some scholars have focussed entirely on the entry point of applications to Strasbourg and thus on issues of admissibility.2 Others have analysed the execution of the Court’s judgments, focusing on the individual and general measures indicated by the Court’s judgments or on the supervision of their execution by states.3
Much less consideration has been given in Convention law scholarship to the interface of substantive matters and rather more procedural and institutional issues. Similarly, little attention has been paid to the interconnectedness between this interface and the wider debates about the nature of the Court as mainly or even only serving individual or, by contrast, constitutional justice. To our minds, it is important to connect the dots to see the overall picture of the developments in the Convention system.
To solve this gap in scholarship, this special issue focuses on a number of seemingly purely procedural issues that are closely intertwined with the substance of the Convention rights and the wider debates surrounding the Court’s functions. Our point of departure is that admissibility issues at the Court – metaphorically the ‘heads’ – and remedies – the ‘tails’ – mutually influence and shape not just the Court’s judgment of the merits – the ‘body’ of cases in Strasbourg – but also each other. Thus, in a variation on the old Egyptian and Greek legend of Ouroboros, the serpent eating its own tail and thus forming a cycle, we contend that the heads and tails of procedures before the Court are more closely connected than may seem at first sight. The way these connections are given shape and are perceived are central to this special issue.
2 Developments in the echr System
The two roles for the Court of providing individual justice and constitutional justice beyond the individual case, have shaped the successive waves of reforms of the Court.4 This applies both to the additional protocols adopted by parties to the Convention, and to the Court’s own case law and internal working methods. Depending on where one looks, one may find that the Court has a core constitutional role in developing and clarifying Convention rights in the human rights supervision of states.5 At the same time, the Court’s judgments are concerned with individual complaints over human rights violations, and the Court has to decide which cases to declare admissible based on whether the applicant is a ‘victim’ under Article 34 echr.6 In the Court’s judgments, findings of a violation of echr rights may be followed by the granting of remedies such as a monetary award as just satisfaction under Article 41 echr or by suggesting individual measures to be taken under Article 46.7
Both admissibility and remedies are fields which have produced a rich and increasing body of norms and standards in the Court’s case law, as well as a considerable amount of new working methods and practices in the Court. For example, in judgments on judicial independence of the last few years,8 there is a clear interaction between substantive norms and their procedural or remedial consequences. The three climate cases decided on 9 April 2024 by the Court’s Grand Chamber9 have refined and partially rewritten the admissibility criteria, widening them for collective actors in this particular context and narrowing them for individuals. These innovations directly affected the types of measures that the Court indicated in the leading KlimaSeniorinnen judgment, which were of a general and not an individualised nature. These landmark judgments thus reflect how closely the ‘heads’ and ‘tails’ of a judgment can be connected, and how much influence they may have on the development of substantive Convention rights and obligations. They also highlight another development in the Convention procedures, which is the increasing role of non-governmental organisations and other third parties. ngo s and similar organisations, such as national human rights institutes (nhri s) are playing an increasingly important role in representing and supporting applicants, in informing the Court by intervening in the procedure, and by assisting in the implementation of judgments once they have been delivered.10 Even a form of public interest litigation can be seen to have developed over the past few years.11
Similarly, the continuous reforms of the Convention system of the past three decades have introduced new mechanisms with potentially wide application (pilot judgments) and have reshaped old procedural tools and notions to give them new importance (interim measures, unilateral declarations, subsidiarity).12 The Court’s own powers have developed with the maturing jurisprudence, often adding extensive procedures, both as a consequence of the number of cases and of the lack of compliance by states with judgments and various remedies.13
Furthermore, increasing attention has been given by states, civil society, and scholars to the functioning and effectiveness of the Court. With the formal aim of helping the Court deal with its heavy caseload, states have been involved in the ‘Interlaken process’ to further reform the Court’s procedure and role.14 Together with the entry into force of Protocol No 15 to the Convention,15 their activities have brought about important changes in the formal rules on access to the Court, as well as the Court’s working processes. The timeframe within which applicants have to submit their applications has been incrementally tightened.16 Today, applications must be sent within four months of the last decision by the highest national instance. Furthermore, through Protocol No 14 to the Convention, which entered into force in 2010, the requirements have been lowered for holding applications inadmissible because the applicant did not suffer any significant disadvantage, pointing to a slight shift towards a more constitutional role for the Court.17 In parallel, the Court has invested in further streamlining and improving its working processes, for instance by changing the application form, amending its priority rules, and offering (some) reasoning in Single Judge decisions.18 It also has resorted to a new system for negotiating friendly settlements, and it has proved to be increasingly willing to accept unilateral declarations, all to the effect that there is no need to decide large numbers of cases on their merits.19
At the same time, with similar objectives, the remedies the Court can offer have developed. In recent years, the Court has made less use of its pilot judgment procedure, but it has increasingly been indicating individual and general measures that the respondent states should take to remedy a violation.20 The Court has even awarded just satisfaction so high that it could amount to punitive damages.21 In a number of cases, the Court has nudged states to reopen national proceedings, even though states have no explicit obligation to do so under the Convention. In several so-called ‘No 2’ cases, which are cases that come before the Court again following the earlier finding of a violation, the Court has revisited the situation, even when the Committee of Ministers – which supervises states’ implementation of judgments – is still exercising its formal supervisory role.22 In a few recent cases, the Court has, under the infringement procedure of Article 46(4) echr and upon the request of the Committee of Ministers, revisited cases in which the states implementation of a previous judgment was clearly failing.23
The many reforms and changes in Strasbourg over the past decades described here have affected the ‘heads’, the ‘body’, and the ‘tails’ of the Strasbourg procedure. In developing the substantive law of the Convention, both the constitutional role of the Court and its function of providing individual justice may come to the fore. But, as the contributions to the current special issue show, the heads and tails of proceedings can equally have an important function in organising the relationship between the Convention, the Court, and domestic legal orders.
3 This Special Issue: Connecting Heads, Body, and Tails
This special issue is the result of an international academic workshop with the title ‘Heads and Tails: Admissibility and Remedies at the European Court of Human Rights’ that took place in June 2023 at Utrecht University and was convened by the present guest editors. During the workshop, a group of researchers from across Europe delved into various aspects of the heads, body, and tails of the Court’s judgments and decisions, in the light of the developments sketched above. In order to go beyond topic-specific case studies, we asked all participants in the run-up to the workshop to write a short paper on a topic related to heads and tails of the Court’s procedure and link their contributions to wider questions, including: how do the developments on your topic relate to the debate on whether the Court should offer individual or general justice, and whether its primary role should be to offer redress to individual justice or rather (or also) to address systemic violations? Will the stricter demands on admissibility lead to a strengthening of the remedies? Can the changes primarily be explained by the challenges offered by the Court’s caseload or can other explanations be provided? What role is played in all these developments by the demands and needs of parties to the cases and other actors, such as (representing or intervening) ngo s and nhri s?
During the workshop itself, sessions were dedicated to the following topics, and subsequently connected through a final discussion session: (1) Entry Points: developments in admissibility criteria: Protocol 15, working methods of the Court; (2) Along the Way: developments in ‘striking off’ decisions: friendly settlements and unilateral declarations; (3) The End of the Road: developments in individual remedies (just satisfaction, reopening) and in general and structural measures (pilot judgments, general remedies, the role played by ngo s and nhri s); and (4) Which Road to Travel?: which role(s) for the Court (individual versus structural justice, implementation problems)?.
A selection of drafts was subsequently reworked into papers which together form the current special issue of the echr Law Review. In our view, they offer a valuable contribution to the emerging, fruitful, and valuable scholarship on linkages between the ‘heads and tails’, the body, and the wider issues in which they are embedded. They demonstrate the rich production of norms and standards in the Court’s case law, and, as in the cases on judicial independence and climate change, the interaction between procedural or remedial rules and substantive norms. Some contributions concern new mechanisms with a wide application, others relate to old mechanisms with a new importance, to discretionary powers of the Court which harden with the maturing and evolving jurisprudence, or to adding extensive procedures to deal with the influx of cases or the lack of compliance with judgments and various remedies.
Most articles look at both the heads and tails aspects of their central problem, with several also connecting to the ‘body’ of judgments and decisions of the Court. Several specifically connect to the Court’s role of addressing systemic issues on the national level and achieving a degree of general justice by bringing the rule of law problems in Hungary and Poland to the fore in two of the articles, as well as the parallel treatment of the same pressing problems in the Court of Justice of the European Union. In these examples, all developments discussed above come together. Another common thread in the articles concerns the proceduralisation of the Court’s review, which brings new challenges for the remedies it indicates. Finally, several articles highlight that the Court could invest more in clarification and development of the available remedies, also addressing the Court’s role in the wider Convention system and the question of whether subsidiarity should be relevant in this regard.
Marco Fisicaro’s article on ‘Novel Approaches to Interim Protection Against Systemic Threats to the Rule of Law’ explores the evolution of an important, but under-researched, set of rules relating to the ‘head’ of proceedings before the Court. He writes about interim measures under Rule 39 of the Rules of Court, taking the Court’s set of Rule 39 decisions pertaining to the Polish rule of law crisis as a case study. Although interim measures are obtained before the judgment, they have a remedial character, and as such can be seen to be connected to remedies at the ‘tail’. Fisicaro argues that the Court’s use of Rule 39 in the rule of law cases both expands the scope and strengthens the content of interim protection. The Court has interpreted the Rule 39 requirement that ‘the applicant would otherwise face an imminent risk of irreparable damage’ in such a way that it applies to damage to the Convention’s system and to its underlying values, rather than to the more direct effects on the individual applicant only. Marco Fisicaro’s Polish case study, read together with other recent developments in the Court’s practice under Rule 39, not only explains the evolving nature and function of interim measures in the Convention’s system, but also highlights outstanding procedural shortcomings.
Equally, at the ‘heads’ end and dealing with the admissibility criterion of exhaustion of domestic remedies, Mathieu Leloup provides an incisive analysis of the Court’s case law in his contribution entitled ‘The Question of Non-Independent Apex Courts as Effective Remedies to be Exhausted’. The Court’s jurisprudence on judicial independence is rapidly expanding at both the substantive and the procedural level. In his contribution, Leloup draws upon the case law of the Court of Justice of the European Union (cjeu) and the interaction between the two European courts. Both courts have set out the crucial role of domestic apex courts in their respective systems, underlining how the principle of subsidiarity makes independence of such courts of paramount importance. Leloup argues that a domestic court cannot be considered an effective remedy if it is not independent and established by law. The Court should not require that applicants exhaust appeals to such domestic courts, so Leloup argues, and he shows how this corresponds to the logic inherent in Article 35 echr, which requires such exhaustion of domestic remedies.
Connecting the heads of the proceedings at the Court to their substance, or ‘body’, and remedies, or ‘tails’, Lorenzo Acconciamessa turns to governments’ unilateral declarations before the Court and the reopening of domestic proceedings’. Cases can be struck out of the list when states issue declarations acknowledging the violations alleged by the applicant and offering a reasonable degree of just satisfaction. In 2007, 30 cases were closed this way, while in 2022 there were 490. Clearly, striking out cases in this way has become a tool for the Court in reducing its backlog. A remaining question is, however, whether such strike-out decisions have the same effects in domestic law as a judgment by the Court. To answer this question, Lorenzo Acconciamessa looks into whether strike-out decisions result in the reopening of domestic court proceedings and, more broadly, to what extent strike-outs promote domestic authorities’ engagement with their obligations. He argues that the Court should review the compliance with strike-out decisions in similar way as in situations in which the Court allows applications when states have committed a new violation in not executing a judgment of the Court.
Moving towards the ‘tails’ of the Court’s judgments, Anne Bombay in her article interrogates general measures as a judicial remedy to address legislative inaction. Sometimes the Court will ask a state to go beyond offering relief to individual applicants and require it to take more complex actions, such as making changes to domestic laws or policies. It often does do so in cases where the Court sees structural or systemic problems in the country that it wants the state to address. Bombay shows that the Court has indicated general measures in two types of cases. The first type are cases in which the state has not abided by a judgment and is held responsible for a breach of Article 46 echr on the binding force of judgments and their execution. The second type are pilot judgments linked to ‘initial legislative inaction’. Anne Bombay shows that there are doubts about the efficacy of these remedies in terms of providing individuals with an effective remedy. She recommends more transparency on the legal status of these remedies as well as on their content. She argues for a more limited role of subsidiarity in this context and emphasises that for these ‘general measures’ it is important that subsidiarity does not reduce the clarity of what is required from states. If this is not sufficiently taken into account, in her view, the legitimacy of the Court’s judgments might be endangered.
Also focusing on the ‘tails’ of the Court’s judgments, in his contribution Joseph Finnerty asks the question of how the Court should remedy violations of Article 18 echr. Article 18 provides that the restrictions permitted under the Convention shall not be applied for any purpose other than those for which they have been prescribed. Finnerty’s core perspective is that of the Court’s constitutional role. He analyses how the Court prescribes remedies in this category of judgments, in which this role is particularly manifest. Findings of Article 18 violations highlight structural problems in states, often with complicity from domestic judiciaries in insidious efforts to restrict Convention rights for ulterior purposes. Joseph Finnerty argues that the Court’s imprecise approach to remedies is particularly unhelpful in Article 18 cases. He argues that the Court need be highly prescriptive and specific in respect of both individual and general measures in such cases in which the Convention’s core values, such as democracy and the rule of law, are at risk.
Finally, connecting ‘heads’ (admissibility) and ‘tails’ (remedies) in climate cases, Corina Heri asks if these are just ‘Too Big to Remedy?’. So far, the admissibility decisions have opened up standing and actiones populares, but Heri goes to the ‘tail’ end and the available remedial options in climate cases. She focusses on the case of the KlimaSeniorinnen v Switzerland, highlighted above, to re-examine the idea that some issues are simply too extensive or too complex to receive scrutiny – or indeed a remedy – from a human rights body such as the Court. The KlimaSeniorinnen case offered the Court a particular opportunity to respond to the structural nature of climate change. Its deferential remedial findings relate to the Court’s understanding of reparation and its own role, which in turn shape its willingness to open its remedial toolbox. Thus, Corina Heri clearly shows how the new reading of the Convention’s admissibility criteria can affect the clarity and streamlining of all remedial possibilities, with the head of the procedure really biting its tail.
Acknowledgements
The 2023 ‘Heads and Tails’ workshop at Utrecht University followed on from a 2022 workshop at the University of Oslo on ‘How to Research the European Court of Human Rights?’.24 The starting point was that there is no one ‘right’ way to study the Court but that it might be useful to initiate a discussion between scholars working in different disciplines and fields on the use of their methods. We thank both universities for supporting these workshops. We also thank all participants to the Utrecht workshop for contributing to the discussions, which benefitted both the papers in this special issue as well as further thinking on the topic for all of us. Last but not least, we would like to thank the contributing authors for their articles as well as the General Editors of the European Convention on Human Rights Law Review for making it possible for us to serve as Guest Editors for this special issue.
See, for example, OM Arnardóttir, ‘The ‘Procedural Turn’ Under the European Convention on Human Rights and Presumptions of Convention Compliance’ (2017) 15 International Journal of Constitutional Law 9.
See, for example, R Schädler, Re-Designing the Admissibility Model of the European Court of Human Rights (Schulthess Verlag 2019).
See, for example, LA Sicilianos, ‘The Involvement of the European Court of Human Rights in the Implementation of its Judgments: Recent Developments Under Article 46 echr’ (2017) 32(3) Netherlands Quarterly of Human Rights 235; LR Glas, ‘The European Court of Human Rights Supervising the Execution of its Judgments’ (2019) 37 Netherlands Quarterly of Human Rights 228; P Popelier, ‘What’s Cooking? General Measures in the Case Law of the European Court of Human Rights’ (2024) 5(1) European Convention on Human Rights Law Review 132.
See, for example, F de Londras, ‘Dual Functionality and the Persistent Frailty of the European Court of Human Rights’ (2013) European Human Rights Law Review 38; JH Gerards and LR Glas, ‘Access to Justice in the European Convention on Human Rights System’ (2017) 35 Netherlands Quarterly of Human Rights 11.
See, in particular, L Wildhaber, ‘A Constitutional Future for the European Court of Human Rights?’ (2002) 23 Human Rights Law Journal 161; W Sadurski, ‘Partnering with Strasbourg: Constitutionalisation of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments’ (2009) 9 Human Rights Law Review 397, 412ff; S Greer and L Wildhaber, ‘Revisiting the Debate About “Constitutionalising” the European Court of Human Rights’ (2012) 12 Human Rights Law Review 655, 667–669; AS Sweet, W Sandholtz, and M Andenas ‘The Failure to Destroy the Authority of the European Court of Human Rights: 2010–2018’ (2022) The Law & Practice of International Courts and Tribunals 244, 245–246, 249–250 and 254–260.
JH Gerards, ‘Abstract and Concrete Reasonableness Review by the European Court of Human Rights’ (2020) 1(2) European Convention on Human Rights Law Review 218.
See further on this Gerards and Glas (n 4).
Most importantly, the Grand Chamber judgments in Grzęda v Poland [gc] 43572/18 (ECtHR, 15 March 2022); Guðmundur Andri Ástráðsson v Iceland [gc] 26374/18 (ECtHR, 1 December 2020); Baka v Hungary [gc] 20261/12 (ECtHR, 23 June 2016).
Verein KlimaSeniorinnen Schweiz and Others v Switzerland [gc] 53600/20 (ECtHR, 9 April 2024); Carême v France [gc] 189/21 (ECtHR, dec, 9 April 2024); Duarte Agostinho and Others v Portugal and 32 Other States [gc] 39371/20 (ECtHR, dec, 9 April 2024).
See, in more detail, for example, N Bürli, Third-Party Interventions Before the European Court of Human Rights (Intersentia 2017); E Erken, ‘The Participation of Non-Governmental Organisations and National Human Rights Institutions in the Execution of Judgments of the Strasbourg Court Exploring Rule 9 Communications at the Committee of Ministers’ (2020) 1(2) European Convention on Human Rights Law Review 248; CMS Loven, Fundamental Rights Violations by Private Actors and the Procedure Before the European Court of Human Rights: A Study of Verticalised Cases (Intersentia 2022); E Erken, ‘Theoretical and Empirical Consideration on the Desirability of an Expanded Role for Non-Governmental Organisations Before the European Court of Human Rights’ (2024) 4 European Convention on Human Rights Law Review (forthcoming).
See C Heri, ‘Climate Cases as Public Interest Litigation Before the European Court of Human Rights’, in Public Interest Litigation in International Law, J Bendel and Y Suedi (eds) 317, (Routledge 2023); H Keller and V Gurash, ‘Expanding ngo s’ Standing: Climate Justice Through Access to the European Court of Human Rights’ (2023) 14(2) Journal of Human Rights and the Environment 194.
On this, see in particular, LR Glas, The Theory, Potential and Practice of Procedural Dialogue in the European Convention on Human Rights System (Intersentia 2016); LR Glas, ‘From Interlaken to Copenhagen: What Has Become of the Proposals Aiming to Reform the Functioning of the European Court of Human Rights?’ (2020) 20 Human Rights Law Review 121.
The Court has established, for example, that interim measures are binding on states, and this has generally been accepted by the states and has been consolidated by complementing Rule 39 of the Rules of the Court by a Practice Direction. In a similar way, the pilot judgment procedure was inserted in Rule 61 of the Rules of the Court as a means of dealing with large groups of identical cases that derive from the same underlying problem, and is developed and clarified in individual judgments and documents produced by the Court’s Registry.
See further, for example, Glas, ‘From Interlaken to Copenhagen’ (n 12).
Protocols may amend the Convention. Protocol No 15 to the Convention amended the Convention, introducing a reference to the principle of subsidiarity and the doctrine of the margin of appreciation in the Preamble. Protocol No 15 to the Convention also, amongst other changes, reduced the time-limit within which an application may be made to the Court following the date of a final domestic decision from six to four months.
See further Gerards and Glas (n 4).
See, for example, AC Buyse, ‘Significantly Insignificant? The Life in the Margins of the Admissibility Criterion in Article 35 § 3 (b) echr’, in The Realization of Human Rights: When Theory Meets Practice: Studies in Honour of Leo Zwaak, B McGonigle Leyh and others (eds), (Intersentia 2013) 107. Later, in Protocol No 15 to the Convention, this criterion in Article 35 echr was slightly amended.
See further, for example, Gerards and Glas (n 4). On the priority rules, see ECtHR, ‘The Court’s Priority Policy’: <https://prd-echr.coe.int/documents/d/echr/Priority_policy_ENG>. On the reasoning in Single Judge cases, see ECtHR, ‘Launch of New System for Single Judge Decisions with More Detailed Reasoning’ (1 June 2017) echr 80(2017): <https://hudoc.echr.coe.int/eng-press?i=003-5735020-7285664>.
On unilateral declarations, see, for example, LR Glas, ‘Unilateral Declarations and the European Court of Human Rights: Between Efficiency and the Interests of the Applicant’ (2018) 25(5) Maastricht Journal of European and Comparative Law 607.
A Donald and AK Speck, ‘The European Court of Human Rights’ Remedial Practice and its Impact on the Execution of Judgments’ (2019) 19(1) Human Rights Law Review 83.
P Pinto de Albuquerque and A van Aaken, ‘Punitive Damages in Strasbourg’, in The European Convention on Human Rights and General International Law, A van Aaken and I Motoc (eds), (Oxford University Press 2018) 230.
See, for example, Kudeshkina v Russia (No 2) [gc] 28727/11 (ECtHR, 17 February 2015) paras 59–68.
See, in particular, Ilgar Mammadov v Azerbaijan [gc] 15172/13 (ECtHR, 29 May 2019).
For a literature review of the issues discussed at that workshop in a broader sense, see JH Gerards, E Erken, and CMS Loven, ‘The Expanding Methodological Toolbox of the echr Scholar’ (2023) Law and Method.
