Since the entry into force of Protocol 14 ECHR in 2010, the European Court of Human Rights has begun to lose a crucial element of its legitimacy. Protocol 14 allows a single judge to screen cases with an unrestricted margin of appreciation, formally in order to discharge the Court and, in case of abuse, to deny access to justice. Concluding the inadmissibility of a politically disturbing affair is the most effective way of ignoring it. Of more than 95 % of the applications declared inadmissible each year by single judges in Strasbourg, the probability of a significant number of abuses can not be ruled out from the outset. The litigant thus faces a single judge with an exorbitant and uncontrollable power, who, upon the pretext that the request is "manifestly ill-founded" or that it concerns an "insignificant prejudice" according to his personal interpretation, has "carte blanche" to turn a deaf ear and deny so justice. Moreover, a decision of inadmissibility will allow the State concerned to assert a false legitimacy of its own laws and decisions against an individual who is genuinely a victim of a violation of the ECHR - the ultimate perverse effect of Protocol 14 is to draw in the moral authority of the ECHR to challenge the victim's recourse to law. In order to mitigate the risk of such a situation, a panel of at least two judges from different political and legal cultures and jurisdictions would be needed to determine the admissibility of the application, which would allow a genuine debate compliant with discourse ethics, and thereby a social control between national magistrates sitting in the Court. This contribution calls for a reform of Protocol 14 to safeguard the European Convention on Human Rights.
Friday, March 1, 2019
Germann: Protocole 14: La lettre de cachet de la CEDH - L'Europe des juges en droits de l'Homme unie dans la diversité?
Christophe Germann (Webster Univ., Geneva - Law) has published Protocole 14: La lettre de cachet de la CEDH - L'Europe des juges en droits de l'Homme unie dans la diversité? (Nomos, 1/19). Here is the abstract: