Here is an excerpt of "The European Court of Human Rights: What It Is, How It Works, and Its Future" by McKaskle, Paul L. (2005).
First, in the United States a judge and the law clerks hired by him or her develop an individual relationship that usually reflects the priorities (and even the biases) of the judge. In the Strasbourg Court, however, the Registrar's staff is answerable to the Registrar, and not to individual judges. The Registrar's staff prepares the initial analysis of all cases, is present in Chamber deliberations, and probably prepares most opinions of the Court. What effect this relationship has on the jurisprudence of the Strasbourg Court is impossible for an outsider to know. For some judges the effect may well be minimal or non-existent. But it is possible that the staff views might have an effect on new judges or judges not entirely comfortable with the English or French language. 168 Extensive use of a central legal staff may also result in greater bureaucratic or institutional decision-making.
The problem is, Europe is a hodgepodge of very different participating countries that "do not share a common source of law and have major cultural differences. A substantial number are, at best, emerging democracies". Go figure!
B. The Caseload Problem May Be Far Worse than Officially Recognized
... One cannot overemphasize the potential of future cases resulting from the admission of the newer member states as a major factor in the continuing increases in the caseload of the Court. At present the number of judgments against the recently admitted states is not great, (372) but this number may escalate. Most of the member states are, at best, emerging democracies and several have a recent history of violence and repression. (373)
Here is a further interesting read in the German Law Journal Vol. 19 No. 07
The Motivations of Individual Judges and How They Act as a Group
By Shai Dothan
D. People Who Are Not Judges
I. Legal Staff
It is easy to adopt the misleading view that judges are the only people who really matter in international courts. After all, judges are the ones who sign judgments, and therefore it is natural to assume that it is only judges who make important policy decisions. But this imaginary view is probably mistaken with regards to many international courts.
Scholars have noted that the ECHR has a very influential legal staff, partly because judges who are not proficient in English and French, the two official languages of the court, must rely very closely on staff members.58 In many international courts, especially criminal courts, the staff can number hundreds of experienced professionals.59 It is naïve to think that these experts do not affect judicial policy.
To the extent one believes the legal staff is diverse and unbiased, the substantial impact of this staff may be a blessing. It could mitigate the influence that biased judges have on the practices of the court. But if the legal staff is hierarchically controlled, the people on the top of the pyramid may form a danger of an entirely different magnitude. In the ECHR, for example, all the staff members answer directly to the Registrar. The Registrar, in turn, is under the authority of the court's President. If either the Registrar or the President are biased, this bias could echo throughout the entire legal staff.
If the staff or the people controlling it are biased, they may direct the entire court to suit their preferences. This suggests that empirical research should not stop at investigating the selection of international judges. It should also study the selection and promotion of other legal staff within international courts, and it should put special emphasis on the positions in the court that control the legal staff.
II. Lawyers and NGOs as Repeat Players
Courts do not work in isolation. They constantly interact with lawyers who bring cases to the court, argue before it, and significantly affect the content of its decisions. Research has shown that many of the lawyers who appear before international courts are "repeat players"—they litigate before the same court numerous times.60 These repeat players gain legal expertise and connections that give them a unique influence on the policy made by the court. Just like with the legal staff on the court, this influence may either mitigate or exacerbate the biases of the judges depending on the nature of the legal community surrounding the court.
And read this:
Importantly for the purposes of this paper, international courts are also advised to treat different states differently. States that enjoy a high-reputation for compliance with international law pose a greater threat to the court. Their non-compliance or even their criticism can significantly harm the court's reputation. To counter this threat, international courts treat high-reputation states more leniently than they do low-reputation states. They will reserve their most demanding judgments—especially those that are based on doctrinal novelties—to states that have a low-reputation.
Obviously, this form of behavior is a threat to judicial objectivity. To the extent that individual judges are pressured to serve the court's long-term interest in this way, it may make them far more biased than any personal incentive discussed above. Judges may use ingenious ways to profess evenhandedness even as they pursue the dangerous course that promises their court greater power in the future.
Finally the
F. Conclusion
The reader clearly realized by this point that this paper offers more questions than answers. The power of Judicial Behavior studies—at least for the purpose of this paper—is that it allows scholars of international courts to ask the right questions.
The finding that international judges are biased in favor of their home countries is incredibly robust.
...
First, in the United States a judge and the law clerks hired by him or her develop an individual relationship that usually reflects the priorities (and even the biases) of the judge. In the Strasbourg Court, however, the Registrar's staff is answerable to the Registrar, and not to individual judges. The Registrar's staff prepares the initial analysis of all cases, is present in Chamber deliberations, and probably prepares most opinions of the Court. What effect this relationship has on the jurisprudence of the Strasbourg Court is impossible for an outsider to know. For some judges the effect may well be minimal or non-existent. But it is possible that the staff views might have an effect on new judges or judges not entirely comfortable with the English or French language. 168 Extensive use of a central legal staff may also result in greater bureaucratic or institutional decision-making.
Second, in part, the legal staff (serving as the equivalent of an American law clerk) does carry out duties typical of the position, such as an analysis of each application filed with the Court as to whether it should be admissible because the allegations suggest that there has been a violation of the Convention. But the duties go further. Pursuant to Rule 22 of the Rules of Court, the Registrar or his designee is present during deliberations of a Committee, Chamber, or Grand Chamber. (171) The rules provide that "only judges shall take part in the deliberations,"' but it is not hard to imagine that many questions may well be put to the Registrar or other legal staff present, and thus the responses of staff constitute a de facto participation.
171. ECHR Rules, supranote 40, R. 22. Rule 22 also provides that "other officials of the Registry and interpreters whose assistance is deemed necessary" may also be present during deliberations. Id. In the United States Supreme Court, law clerks never participate in conferences, and such a practice is extremely rare in the California Supreme Court.
...
The Strasbourg Court, on the other hand, is presumably obligated to accept and decide any case presented to it that credibly alleges a violation of the Convention. This has led to an explosion in the number of cases considered by the Court. Further, this explosion in case numbers is exacerbated by the inability of the Court to decide cases on a summary basis and by the lack of a mechanism to remand to a national court for reconsideration based on Strasbourg court prior decisions.
Nevertheless, the use of the word "presumably" in the previous paragraph is done advisedly. Though there is nothing in the Convention or the Rules of the Court granting discretion to ignore what, prima facie, appear to be credible claims, some observers of the Court suspect that a substantial amount of discretion is exercised in rejecting cases. The ratio between the number of applications for relief filed with the Court and the number of cases actually taken gives some credence to this suspicion. For example, in 2004 there were decisions on admissibility on over 21,000 applications, but only 830 cases were deemed worthy of further consideration. While undoubtedly a fair number of applications are unfounded, it seems surprising that close to ninety-seven percent of them are unable to even allege a prima facie credible violation. (253) But without further information, questions about the Court's exercise of discretion in choosing which cases to hear are merely a matter of conjecture.
253. The vast majority of applications filed are rejected as being "manifestly ill-founded" (the term used when a case is rejected by a Committee). Convention, supranote 12, art. 35(3); Wildhaber, Oslo Speech, supranote 154, at 6 (noting that manifestly inadmissible cases constitute ninety percent of applications). It may be that some of the applications are made by lay individuals who have no knowledge of the scope of the Court's jurisdiction, but it would seem probable that many of the applications are made with the assistance of a lawyer who is acquainted with the relevant provisions of the Convention and would not file an application that had little or no chance of succeeding. So, it is at least surprising that the ratio of summary rejection is so high. Further, I have been told by lawyers familiar with the Court that they have seen applications that did appear to present serious issues but which were, nevertheless, rejected as "manifestly unfounded." While rejected applications are, in theory, available for public inspection, the procedure to see a file is tedious. A file has to be specifically requested in writing, and a time must be set up to examine it under the supervision of a member of the Registrar's staff and general requests for multiple files cannot be made. See European Court of Human Rights, Press, http:// www.echr.coe.int/ (follow "Press" hyperlink; then follow "Rules on access to case files" hyperlink). Further, applications may be written in any one of the thirty-seven languages used in the member states, and if rejected at an early stage, are not translated. WORKING METHODS REPORT, supra note 97, at 11. So, as a practical matter it is impossible to determine whether this occurs regularly or are isolated events-or are simply mistakes of the observers as to whether the rejected applications are, in fact, meritorious. Thus, at best it is only a suspicion that there currently exists at least some exercise of discretion in deciding whether the Court will consider a case. See also OVEY & WHITE, supra note 25, at 404 (expressing concern that summary rejection of applications by Committees without explanation will "no longer build up an easily consulted body of decisions clarifying the grounds of inadmissibility").
253. The vast majority of applications filed are rejected as being "manifestly ill-founded" (the term used when a case is rejected by a Committee). Convention, supranote 12, art. 35(3); Wildhaber, Oslo Speech, supranote 154, at 6 (noting that manifestly inadmissible cases constitute ninety percent of applications). It may be that some of the applications are made by lay individuals who have no knowledge of the scope of the Court's jurisdiction, but it would seem probable that many of the applications are made with the assistance of a lawyer who is acquainted with the relevant provisions of the Convention and would not file an application that had little or no chance of succeeding. So, it is at least surprising that the ratio of summary rejection is so high. Further, I have been told by lawyers familiar with the Court that they have seen applications that did appear to present serious issues but which were, nevertheless, rejected as "manifestly unfounded." While rejected applications are, in theory, available for public inspection, the procedure to see a file is tedious. A file has to be specifically requested in writing, and a time must be set up to examine it under the supervision of a member of the Registrar's staff and general requests for multiple files cannot be made. See European Court of Human Rights, Press, http:// www.echr.coe.int/ (follow "Press" hyperlink; then follow "Rules on access to case files" hyperlink). Further, applications may be written in any one of the thirty-seven languages used in the member states, and if rejected at an early stage, are not translated. WORKING METHODS REPORT, supra note 97, at 11. So, as a practical matter it is impossible to determine whether this occurs regularly or are isolated events-or are simply mistakes of the observers as to whether the rejected applications are, in fact, meritorious. Thus, at best it is only a suspicion that there currently exists at least some exercise of discretion in deciding whether the Court will consider a case. See also OVEY & WHITE, supra note 25, at 404 (expressing concern that summary rejection of applications by Committees without explanation will "no longer build up an easily consulted body of decisions clarifying the grounds of inadmissibility").
352. In terms of the present caseload, it is possible that the Court is already exercising discretion in deciding whether to take cases which seem to present issues of "minor or secondary importance." The vast majority of applications filed are rejected as being " man-
ifestly ill-founded'" (the term used when a case is rejected by a Committee). Id It may be that many of the applications are made by individuals who have no knowledge of the scope of the Court's jurisdiction, but it would seem probable that many of the applications are made with the assistance of a lawyer who is acquainted with the relevant provisions of the Convention and would be unlikely to file an application that had no chance of succeeding. So, it is at least surprising that the ratio of summary rejection is so high. Further, I have been told by lawyers familiar with the Court that they have seen applications that did ap- pear to present serious issues but which were, nevertheless, rejected as "manifestly ill- founded." Since rejected applications are not easily accessible for public inspection, it is impossible to determine whether this is a systematic occurrence or are isolated events-or are simply mistakes of the observers as to whether the rejected applications are, in fact, meritorious. Thus, at best there is only a suspicion that there is at least some exercise of discretion in deciding whether the Court will consider a case.
The problem is, Europe is a hodgepodge of very different participating countries that "do not share a common source of law and have major cultural differences. A substantial number are, at best, emerging democracies". Go figure!
B. The Caseload Problem May Be Far Worse than Officially Recognized
... One cannot overemphasize the potential of future cases resulting from the admission of the newer member states as a major factor in the continuing increases in the caseload of the Court. At present the number of judgments against the recently admitted states is not great, (372) but this number may escalate. Most of the member states are, at best, emerging democracies and several have a recent history of violence and repression. (373)
Here is a further interesting read in the German Law Journal Vol. 19 No. 07
The Motivations of Individual Judges and How They Act as a Group
By Shai Dothan
D. People Who Are Not Judges
I. Legal Staff
It is easy to adopt the misleading view that judges are the only people who really matter in international courts. After all, judges are the ones who sign judgments, and therefore it is natural to assume that it is only judges who make important policy decisions. But this imaginary view is probably mistaken with regards to many international courts.
Scholars have noted that the ECHR has a very influential legal staff, partly because judges who are not proficient in English and French, the two official languages of the court, must rely very closely on staff members.58 In many international courts, especially criminal courts, the staff can number hundreds of experienced professionals.59 It is naïve to think that these experts do not affect judicial policy.
To the extent one believes the legal staff is diverse and unbiased, the substantial impact of this staff may be a blessing. It could mitigate the influence that biased judges have on the practices of the court. But if the legal staff is hierarchically controlled, the people on the top of the pyramid may form a danger of an entirely different magnitude. In the ECHR, for example, all the staff members answer directly to the Registrar. The Registrar, in turn, is under the authority of the court's President. If either the Registrar or the President are biased, this bias could echo throughout the entire legal staff.
If the staff or the people controlling it are biased, they may direct the entire court to suit their preferences. This suggests that empirical research should not stop at investigating the selection of international judges. It should also study the selection and promotion of other legal staff within international courts, and it should put special emphasis on the positions in the court that control the legal staff.
II. Lawyers and NGOs as Repeat Players
Courts do not work in isolation. They constantly interact with lawyers who bring cases to the court, argue before it, and significantly affect the content of its decisions. Research has shown that many of the lawyers who appear before international courts are "repeat players"—they litigate before the same court numerous times.60 These repeat players gain legal expertise and connections that give them a unique influence on the policy made by the court. Just like with the legal staff on the court, this influence may either mitigate or exacerbate the biases of the judges depending on the nature of the legal community surrounding the court.
And read this:
Importantly for the purposes of this paper, international courts are also advised to treat different states differently. States that enjoy a high-reputation for compliance with international law pose a greater threat to the court. Their non-compliance or even their criticism can significantly harm the court's reputation. To counter this threat, international courts treat high-reputation states more leniently than they do low-reputation states. They will reserve their most demanding judgments—especially those that are based on doctrinal novelties—to states that have a low-reputation.
Obviously, this form of behavior is a threat to judicial objectivity. To the extent that individual judges are pressured to serve the court's long-term interest in this way, it may make them far more biased than any personal incentive discussed above. Judges may use ingenious ways to profess evenhandedness even as they pursue the dangerous course that promises their court greater power in the future.
Finally the
F. Conclusion
The reader clearly realized by this point that this paper offers more questions than answers. The power of Judicial Behavior studies—at least for the purpose of this paper—is that it allows scholars of international courts to ask the right questions.
The finding that international judges are biased in favor of their home countries is incredibly robust.
...
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