The Economic Crisis and the Evolution of the System Based on the ECHR: Is There Any Correlation?

• Published date: 01 January 2016
• DOI: http://doi.org/10.1111/eulj.12169
• Date: 01 January 2016
• Author: Elisabeth Lambert Abdelgawad

The Economic Crisis and the Evolution of

the System Based on the ECHR: Is There

Any Correlation?

Elisabeth Lambert Abdelgawad*

Abstract: This article analyses the relationship between the freezing of the budget of the

Council of Europe, the introduction of ‘new management’techniques to increase produc-

tivity and the reforms of the European Court of Human Rights to increase the number

of cases solved (and at the speed at which they are solved). To what extent has the the

drive to reduce cost had an impact on the evolution of the European Convention of Human

Rights? Detailed attention is paid to the preparatory works of both the successful and

the unsuccessful reforms of the European system of human rights, other relevant

documents of the Council of Europe. Several key institutional actors were interviewed.

It is concluded that f‌inancial cuts imposed on the budget of the Council of Europe have

saved the Court (to a certain extent) but have signif‌icantly damaged the European system

of human rights.

In this article, I focus on the impact that the rise of f‌inancial value as the paramount

yardstick by reference to which public action should be measured

1

has had over the

system of human rights protection of the Council of Europe (hereafter, CoE), and in

particular, over both the institutional structure of the European Court of Human

Rights (hereafter, ECtHR) and the substantive understanding of the European Conven-

tion of Human Rights (hereafter, ECHR).

There is a wealth of literature exploring the impact that the many ‘austerity’measures

taken in many Member States of the CoE since 2007 have had over the substantive

standards set in the ECHR and in the European Social Charter. To quote ECtHR Vice

President Tulkens, this may well be ‘the most important topic’in the history of the

ECHR and the ECtHR if only because the current crisis has become ‘the prism through

which everything is thought’.

2

This article aims at contributing to this emerging literature but to do so in such a way

that the very object of research becomes larger in both substantive and temporal terms.

The present transformation of ECHR standards cannot be properly understood if we

do not take into account the long-term pressure to reduce the costs of running the

ECHR system, fully at work since the early 1990s, that is, two decades before the pres-

ent set of crises resulted in the very f‌iscal emergencies invoked to justify departures from

* CNRS Research Professor, SAGE (University of Strasbourg).

1

See C. Crouch, The Knowledge Corrupters, (Polity, 2015).

2

F. Tulkens, Dialogue between Judges: Implementing the ECHR in Times of Economic Crisis, (Council of

Europe, 2013).

European Law Journal, Vol. 22, No. 1, January 2016, pp. p. 74–91.

© 2016 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

ECHR standards by several governments. The freezing of the budget of the CoE

(section I) led to very tangible structural changes in the ECHR system (section II.1),

including the move to a court-centred ECHR system (Protocol 9) and the introduction

of a f‌iltering stage at which most petitions could be declared inadmissible (Protocol 11),

which in due course has led to a division of labour between a Court increasingly focus-

ing on a reduced number of ‘relevant’rulings and a Registry (manned by lawyers, not

judges) running the ‘f‌iltering’stage (Protocol 14). Furthermore, the constant pressure to

reduce costs has made of eff‌iciency as measured by narrow criteria a key goal of the

ECHR system (section II.2). The extension of NPM techniques to the management

of the ECHR has played its role in rendering almost banal that money, the sinews of

war, should be decisive when debating the structure and shape of the European system

of human rights protection. The very ‘indicators’by which eff‌iciency has tended to be

measured make irrelevant values or goods the monetary value of which is hard to

assess. We can be sure that the monetary costs have been kept down. The cost per

CoE citizen of running the Court come at €0.08,

3

while the overall CoE costs around

€0.25per citizen.

4

But this does not tell us much about the real state of human rights

protection in Europe. Cheap protection may well be bad protection. Indeed, as is force-

fully argued in a recent experts’report, ‘[d]emocracy and human rights do not seem to

be high on the agenda of many member states in a time of severe, economic, social and

political crisis in Europe’. This is not merely the result of ad hoc measures taken in 2007,

or of the specif‌ic rulings issued by the ECtHR. This is to a far from negligible extent the

result of the structural impact that previous structural reforms have had over the

ECHR system. To summarise, to understand the present crises we have f‌irst come to

terms with their past, and in particular, we have to f‌igure out which actors played a

key role in ‘mainstreaming’eff‌iciency as the paramount value of the CoE human rights

system; which were the reasons why this drive was started; whether such reasons were

consistent with the actual content of the reforms; and which were the policy alternatives

that were put forward but disregarded.

There are two small caveats. Firstly, on what concerns methodology, I combine the

analysis of all the off‌icial documents of the CoE made available on the CoE website

(in particular of preparatory works of reforms) with interviews conducted with a

certain number of actors inside the organisation.

5

Secondly, when speaking of crises,

it seems to me that we should avoid overfocusing on the so-called great recession that

started in 2007. We should be fully aware of the fact that the political crisis may have

been even more serious than the economic crisis. Moreover, it also true that both are

linked in the sense that the lack of economic resources is at the origins of political

3

Sénat (France) ‘Information Report no 705 (2011–2012)’, 25th July 2012, page 43, available at http://www.

senat.fr/rap/r11-705/r11-7051.pdf (9 May 2015).

4

‘Priorities for 2009—Budgetary Implications, Memorandum by the Secretary General’,9April2008,CM

(2008)61, available at https://wcd.coe.int/ViewDoc.jsp?Ref=CM%282008%2961&Language=lanEnglish&

Site=CM&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864,

para.35.

5

I conducted interviews with the previous Registrar in chief of the Court: E. Fribergh (21 April 2015), the

former Chairmanof the Court: Jean-Paul Costa (22nd April2015); Caterine Du Bernard-Rochy(Directorate

of Programme, Finance and Linguistic Services) (4 May 2015); the former secretary of the Commission and

the f‌irst Jurisconsult of the Court: M ichel De Salvia (6 May 2015); the cu rrent Secretary in Chief of the

Commission on Human Rights an d Legal Affairs at the PACE: And rew Drzemczewski (15 May 2015 );

Yann De Buyer, Chief Divisio n, PACE (20 May 2015); Martina Keller, Chief Division at t he ECtHR

(7 July 2015). These interviews triggered a good deal of the points made in this article. I warmly thank all

of them for the interviews provided me with precious insights in the workings of the system.

European Law Journal Volume 22

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