The practice of the European Court of Human Rights when striking out applications
| Date | 01 March 2018 |
| Published date | 01 March 2018 |
| DOI | 10.1177/0924051917752417 |
| Author | Elisabeth Lambert Abdelgawad |
| Subject Matter | Articles |
Article
The practice of the European
Court of Human Rights when
striking out applications
Elisabeth Lambert Abdelgawad
Edith Cowan University, Perth, Western Australia
Abstract
This paper analyses how the European Court of Human Rights has applied Article 37 of the
European Convention on Human Rights that gives it the power to strike out pending cases in the
current context of an overwhelmed Court by individual applications. This article shows that the
Court’s interpretation of Article 37, while being casuistic and pragmatic, has evolved along the
principles of subsidiarity and procedural justice and that the Court has used its discretion, notably
to end cases regarding the expulsion of migrants. Yet this tool has not been a way of disposing
repetitive applications which account for half of the pending cases.
Keywords
Article37ECHR,expulsionofmigrants,friendly settlements, solved matter, unilateral
declarations
Mots Cle
´s
Article 37 CEDH, de
´clarations unilate
´rales, expulsion de migrants, litige re
´solu, re
`glement amiable.
1. Introduction
The European Court of Human Rights (Cou rt, ECtHR) has had case ov erload issues for many
years.
1
The invisible part of the iceberg includes not only inadmissible deci sions but also
Corresponding author:
Elisabeth Lambert Abdelgawad, Edith Cowan University, Perth, Western Australia.
E-mail: e.lambertabdelgawad@ecu.edu.au
1. 64.650 applications were still pending on 31 October 2017. See ECtHR, ‘Pending Applications Allocated to a Judicial
Formation’ accessed 17 November 2017; Jonas
Christoffersen, ‘Individual and Constitutional Justice: Can the Power Balance of Adjudication be Reversed?’ in Jonas
Christoffersen and Mikael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (OUP
Netherlands Quarterly of Human Rights
2018, Vol. 36(1) 7–23
ªThe Author(s) 2018
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cases struck out of the list.
2
Yet, among the many tools available to dispose of applications,
the capacity of the Court to strike-out cases under Article 37 of the European Convention of
Human Rights (Convention, ECHR) has been inadequately researched. Historically, Article 30
(now Article 37 ECHR) which was inserted by Protocol 8
3
in 1985 gave the Commission the
power to strike-out cases from the list of pending cases for one of three reasons similarly
listed in Article 37. According to this provision, the Court ‘may at any stage of the procee-
dings decide to strike an application out of its list of cases’ if it concludes that ‘(a) the
applicant does not intend to pursue his application’ (the indication may be explicit or be
deduced from his/her conduct), or that ‘(b) the matter has been resolved’ (if he/she has
received full redress at national level) ‘or (c) for any other reason’. Even if one of these
conditions is being met, the Court may decide to pursue the examination of the case under
Article 37 (1) in fine and Article 37(2) also gives the discretionary power to the Court to
restore an application to its list of cases.
The right of individual petition set up by the ECHR has rightly been interpreted as the corner-
stone of the European system of human rights. Yet the access to the ECtHR is not and cannot be
absolute, notably when more than 800 million c itizens have become pot ential applicants. T he
applicant may run the risk not only of having his/her application declared inadmissible but also
of having his/her case struck out of the list by the Court, the most invisible part of the already
hidden part of the iceberg. In fact, the Court has used more extensively Article 37 during the last
ten years.
4
As such this article will explore how the Court has applied Article 37. The aspect of
costs and expenses will not be considered because it is too far from our main research question
about the potential discretionary use of Article 37 in the context of an overwhelmed Court. To
assess the Court’s practice on Article 37, several questions need to be addressed: what strategy
has the Court adopted regarding the choice to be made between the legal grounds for str iking out
cases under Article 37? Does the Court vary its interpretation according to the different legal
grounds for striking out cases, or has it depended more on other factors such as the terms of the
agreement proposed by the respondent State? Finally, has the Court used Article 37 (and par-
ticularly the general legal ground (c)) to speed up the examination of a certain type of cases?
5
In
fact, repetitive cases, meaning cases raising issues already decided by the Court in previous
judgments which have not been successfully implemented by the State, have become a crucial
issue for the Court and Article 37(1) may be employed as a useful case management tool to
address similar applications. The literature thus far has concentrated on the procedure and
2011); R Wolfrum and U Deutsch (eds), The European Court of Human Rights Overwhelmed by Applications: Problems
and Possible Solutions (Springer 2009).
2. From 1959 to 2016, 682,059 of the 712,658 decided applications were declared inadmissible or struck out, that is 95,
70%. A judgment was delivered in 30.600 cases. ECtHR, ‘Overview 1959-2015 ECHR’ (March 2017)
www.echr.coe.int/Documents/Overview_19592016_ENG.pdf> accessed 17 November 2017.
3. Council of Europe, ‘P rotocol No 8 to the Convention f or the Protection of Human Rig hts and Fundamental Freedom s’
(19 March 1985) /rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId¼090000
168007a083> accessed 3 March 2017.
4. Information receivedby e-mail by the Registry of the European Court of Human Rights (8 March 2017). From 1999 to
2016, 45175 caseswere struck out of the list. From 1999 to 2006, 4971 caseswere struck out of the list (11%of the total).
5. European Law Institute, ‘Statement on Case-overload at the European Court of Human Rights’ (6 July 2012) 14
d_at_the_European_Court_of_Human_Rights.pdf> accessed 3 March 2017. It recommends to use Art 37(1c) to dispose
of the examination of applications revealing violations of ‘low priority’.
8Netherlands Quarterly of Human Rights 36(1)
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