Access to justice in the European Convention on Human Rights system
| DOI | 10.1177/0924051917693988 |
| Published date | 01 March 2017 |
| Author | Janneke H. Gerards,Lize R. Glas |
| Date | 01 March 2017 |
| Subject Matter | Articles |
Article
Access to justice in the
European Convention on
Human Rights system
Janneke H. Gerards
Utrecht University, Utrecht, Netherlands
Lize R. Glas
Radboud University, Nijmegen, Netherlands
Abstract
The numerous reforms to the Convention system of the past two decades have unquestionably
had an effect on applicants’ means to access justice in the system. It is, however, open to question
how these changes should be evaluated: with reference to the individual right to petition, or with
reference to a more substantive and general conception of access to justice. This article explores
these two approaches to the notion of access to justice both generally and for the Convention
system specifically. The main argument of the article is to show the value of taking a substantive
approach to access to justice in the Convention system. Thus, it challenges the centrality of the
individual right to petition in discussions on reform of the system. Further, to show how taking a
different perspective on access to justice may lead to different analyses, an evaluation in the light
of both approaches is made of five sets of central changes to the Court’s procedure and its
working method. This includes the revised Rule 47, single-judge formations and the priority
policy.
Keywords
European Court of Human Rights, European Convention on Human Rights, access to justice,
effectiveness, procedural/substantive justice, general/individual justice
1. Introduction
Since the establishment of the current system of the European Conven tion on Human Rights
(Convention, ECHR), numerous reforms have been implemented to the procedure of the European
Corresponding authors:
Janneke H. Gerards, is professor of fundamental rights law at Utrecht University, Netherlands.
E-mail: j.h.gerards@uu.nl
Lize R. Glas is assistant professor of European law at Radboud University, Netherlands.
E-mail: l.glas@jur.ru.nl
Netherlands Quarterly of Human Rights
2017, Vol. 35(1) 11–30
ªThe Author(s) 2017
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DOI: 10.1177/0924051917693988
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Court of Human Rights (Court, ECtHR) with an eye to increasing its efficiency and safeguarding
its long-term effectiveness.
1
Virtually everyone will agree that these reforms have significantly
changed the functioning of the Court, as well as the applicants’ means to access justice in the
Convention system.
2
It can be easily agreed that evaluating the effect of these changes on access to justice is
important. It is less easy to agree, however, on how such an evaluation should be carried out.
Much depends on which parameters are relied upon. One such parameter, which reappears in
different evaluations and statements on reform of the Court, is the individual right to petition to the
Court. Not sacrificing that right has even been called one ‘of the primary considerations that should
guide any changes to the Convention system’.
3
This article challenges the centrality of the individual right to petition and individual justice in
discussions on reform of the Court, and submits that it is valuable to supplement these notions by
concepts of substantive and general justice as parameters for assessing reforms. To this end, this
article first argues (in section 2) what access to justice can be said to encompass, both generally and
in the Convention system specifically. The follow-up question (addressed in section 3) is then how
past reforms can be analysed in view of the parameters defined in section 2. More specifically, five
sets of central changes to the Court’s procedure and its working methods are analysed. These
changes have been selected because they have arguably had significant impact on individuals’
access to justice in the Convention system since 1998. This analysis not only serves to examine the
changes in light of the access to justice perspective. It also shows how taking a different access to
justice perspective may lead to different outcomes, as well as how and why it can be valuable to
take this broader perspective in debates about reform of the Court.
2. Access to justice
This section discusses generally how the notion of access to justice can be described in different
ways. In light of that description, it also zooms in on what access to justice encompasses in the
Convention system, and what it means to have effective access to (substantive) justice in that
system. The resulting insights will function as the framework based on which section 3 will analyse
reforms with an impact on access to justice at the Court.
1. Lize Glas, ‘Changes in the Procedural Practice of the European Court of Human Rights: Consequences for the Con-
vention System and Lessons to be Drawn’ (2014) 14 HRL Rev 671; Nikos Vogiatzis, ‘The Admissibility Criterion under
Article 35(3)(b) ECHR: A ‘Significant Disadvantage’ to Human Rights Protection?’ (2016) 65 ICLQ 185. For a review
see CDDH Report on the Longer-term Future of the System of the [Convention], CDDH(2015)R84 Addendum I, 11
December 2015.
2. eg Reflection Group on the Protection of the Reinforcement of the Human Rights Protection Mechanism, ‘Activity
Report’, CDDH-GDR (2001)010, 15 June 2001; Position Paper of the Court on proposals for reform of the [Convention]
and other measures as set out in the report of the [CDDH] of 4 April 2003, CDDH(2003)006 final and CDDH-
GDR(2003)024, 26 September 2003, para 31; NGO Response to Proposals to Ensure the Future Effectiveness of the
[Court], 28 May 2003; Joint NGO statement, ‘Protocol 15 to the [Convention] must not result in a weakening of human
rights protection’, 25 June 2013. See further eg Philip Leach, ‘Access to the European Court of Human Rights - From a
Legal Entitlement to a Lottery?’ (2006) 27 HRLJ 11; Vogiatzis (n 1) 187.
3. European Law Institute, ‘Statement on Case-Overload at the European Court of Human Rights’, 6 July 2012, 20-21. See
also n 61.
12 Netherlands Quarterly of Human Rights 35(1)
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