Restructuring the European Court of Human Rights: Preserving the Right of Individual Petition and Promoting Constitutionalism

To state that the European Court of Human Rights (“ECtHR” or “the Court”) has become a victim of its own success is an oft-repeated mantra. Yet to ring the death knell for what is undoubtedly the most successful international human rights project is premature. While the Court is facing an unsustainable caseload under its current formation, the solution is not to abandon the Court altogether, but to find a structure that facilitates the accommodation of this burdensome caseload. While Protocol 14 - permitting a single judge to rule on admissibility - has eased the Court backlog somewhat, this impact has only been on cases which are ‘clearly inadmissible’. Reform of the Court is still needed if it is to adequately deal with the huge numbers of cases that meet the requirement of admissibility, and the backlog of such cases that have yet to be adjudicated upon. In this article, we argue that although the large backlog of cases currently stifling the ECtHR is a direct result of the individual complaints procedure, nevertheless, the importance of this procedure as the “crown jewel” in the ECHR system cannot be foregone. Our proposed model for restructuring the ECtHR preserves such right of individual petition while facilitating the expedition of constitutionalist complaints. We argue that Chambers of the ECtHR should focus on adjudicatory cases and their procedure should be simplified, whereas the Grand Chamber should be reserved for pronouncing upon constitutionalist issues only. While Draft Protocols 15 and 16 contain provisions that can emphasise the separation between the adjudicatory function of the Chambers and constitutionalist function of the Grand Chamber, we argue that further reforms may be needed and these reforms should be based on the idea of functional separation between the Grand Chamber and other Court’s formations