The Strasbourg Court

by: in Law

The Strasbourg Court should change its approach to improve the effectiveness of justice systems in Europe.

The doctoral thesis defended by Andrej Auersperger Matic at the Law Faculty on Wednesday 26 April 2017 examines the role of the European Court of Human Rights (the Strasbourg Court) in the area of civil justice and its effectiveness. The study defines judicial effectiveness as a key value premise of any civil justice system, composed of three main components – the length, cost and predictability of proceedings. In a comprehensive review of the work of the Strasbourg Court in the last few decades, the study finds that the Court has developed some human rights criteria in these areas that are however rather modest and not always coherent. According to the study, this result can partly be explained by the decisional approach, which can be characterised as predominantly formalist or conceptualist. The Strasbourg Court has not used or referred to available national and international policy documents to analyse the problem of lengthy, costly and unpredictable proceedings, nor has it - with few exceptions - drawn inspiration from comparative law. Rather, it applied abstract imagination and abstract concepts like 'reasonable time', 'access to court' and 'legal certainty' to make its decisions, deriving abstract rights from the idea of a fair trial by asking the question whether a litigant has a 'right' to certain institutional arrangements in the legal system in question.

According to the thesis, the Strasbourg Court developed its doctrines without a frame of reference regarding evaluation criteria or policy choices that determine the institutional context in which civil justice functions. In particular, it has not delved into a more explicit balancing of fairness with effectiveness as guiding value orientations in the formation of respective procedural models, and has not examined the corresponding issues of resource allocation and incentives as possible problems underlying the difficulties faced by the justice systems under review. In other words, the approach of the Court has predominantly been based on the assumption that the issues of delay, cost and predictability - formulated as human rights - can be dissociated from important policy choices concerning the formation of civil justice institutions. The doctrines developed by the Strasbourg Court can thus be said to be insufficiently attentive to the systemic nature of problems encountered by the legal systems under consideration.

Image Building of the European Court of Human Rights.

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