The privilege of remedy: how accessible is the ECtHR?
The European Court of Human Rights is supposed to help victims of rights violations seek justice, but procedural hurdles are preventing access for those that need it most.
"Roma and travelers are good examples of marginalized groups that require special assistance to understand, claim and make their rights effective"
The European Court of Human Rights (ECtHR) often appears as the giant of human rights, righting wrongs and redressing injustice in and around Europe. Yet, many Europeans have never even heard of the Court, contributing to the crisis of this human rights system. There are no reliable statistics on ECtHR-awareness and visibility, which makes it difficult to assess how accessibility before the Court is perceived and experienced. But in terms of socio-economic and digital aspects of access to justice, there is a clear need to raise awareness that human rights might be reserved for the elite. Improving access to justice should of course be a priority in all human rights systems. However, among international procedures, the European system is entrusted with the strongest enforcement mechanism, handles the most cases, covers the most states and cultures, and has the biggest budget. Substantive equality in access to justice should thus be a priority for the ECtHR.
In theory, the Court “may receive applications from any person, non-governmental organization or group of individuals claiming to be the victim” of a human rights violation, and states have an obligation to not interfere with this right. But in practice, both the ECtHR and member states hinder, directly or indirectly, the right to petition the Court. It appears that to apply to the ECtHR, individuals must possess: (a) human rights awareness, (b) digital literacy, and (c) resources.
First, to petition the ECtHR, one must be aware of having suffered a human rights violation. This implies having extensive knowledge related to the normative content of human rights, to the limits of those rights, and having the resources to exhaust internal remedies. However, a 2015 study in Romania reveals that while 72% of Romanians admit they do not possess enough information on human rights, 80% believe human rights violations occur frequently in Romania. Individuals were familiar with the right to life and freedom of speech but also claimed familiarity with rights not included in the European Convention, such as the right to work or right to health. Similarly, an FRA study on anti-discrimination awareness found that “minorities for whom anti-discrimination legislation was developed are frequently unaware of its existence” and they often avoid reporting discrimination due to bureaucracy and a lack of resources. Because regional rights awareness studies are rare, we do not fully understand the scope of this problem. Also, the obstacle of awareness might not be the fault of the ECtHR, but instead originate at a national level where human rights education is either absent or underprovided.
Roma and travelers are good examples of marginalized groups that require special assistance to understand, claim and make their rights effective. The Council of Europe recognized marginalization in human rights justice and put in place a human rights litigation manual for lawyers defending Roma, while also running the Justrom project between 2016-2018, seeking to enhance human rights awareness of Roma in multiple member states. However, claims of Roma marginalisation by the ECtHR and in member states still persist.
Ethnic marginalization might, of course, not be the only factor obstructing access to human rights justice, and attention must be paid to other socio-economic factors of exclusion. For example, a certain degree of digital literacy is necessary to petition the Court. Indeed, using the internet is linked to an increased capability of researching and promoting our human rights. But in 2012, 23% of the EU population had no digital skills, with this lack “ranging from 6% in Sweden to 50% in Romania”. In Italy, this represents the equivalent of 18 million individuals. Digital literacy is required for petitioning the Court in various ways: filling out and printing the application and authority forms, accessing the SOPs (state of proceedings), accessing the factsheets of the Court and most importantly, learning about the overall procedures. But the ECtHR leaves the door half-closed to individuals with decreased digital literacy.
Indeed, funding, regulation and stakeholder engagement are key issues to bridge the digital divide. Initiatives promoting digital and legal empowerment should increasingly target rural areas and vulnerable groups across European States. The link between digital literacy and justice exclusion has also been discussed recently in the UK and appears to be an emerging concern across countries with judicial systems reliant, to some degree, on information and communication technologies. It is likely that these concerns will intensify as digital reforms advance.
An additional obstacle that makes petitioning the Court a privilege is related to the financial and time resources one might have devote to making the ECtHR hear their case. In the EU, many have cited lack of legal aid and unawareness of their rights as impediments to seeking justice. Moreover, applying to the ECtHR also requires extensive expertise. Despite the fact that the Court allows individuals to file themselves, it is common knowledge that for a favourable decision, applicants should seek legal counsel. Marginalized and deprived individuals will likely encounter extreme difficulties to obtain professional assistance with an application. Since poverty makes individuals vulnerable to human rights abuses, this keeps them locked in a vicious circle, obstructing their possibility of obtaining redress. And here is where it gets tricky: because of confidentiality and anonymity issues in judgements, it is unlikely that studies will ever reveal the demographics of ECtHR applicants. We might know their country of origin but we cannot know their socio-economic or cultural status, educational background or their experience with accessing the Court. However, people who lack the resources or capabilities to petition the Court are most likely the ones who need it the most. This paradox should not continue to be left unaddressed. Significant research and evidence-based action is required to guarantee that individuals across all areas and classes in Europe can access the ECtHR.
International actors should exert pressure on states to provide human rights education and combat digital exclusion through policy measures that enhance the affordability and availability of Internet access and integrate digital education in national curricula. The ECtHR and UN should strive, through prompt reforms, to tackle issues of openness, accessibility and rights awareness. Similar to the ICC Trust Fund for victims, the Council of Europe’s human rights Trust Fund should start focusing on aiding “victims in obtaining legal assistance in the pursuit of reparations”. Despite its work for the implementation of the European Convention and capacity-building programs, the Trust Fund (HRTF) has yet to facilitate legal aid and promote digital literacy in relation with petitioning the Court. Finally, national human rights trust funds should be put into place, guaranteeing marginalized and vulnerable groups the resources necessary for making access to justice effective and universal. Research at the intersection between digitalization, marginalization and access to human rights justice should also become a priority in Europe.
Leyla-Denisa Obreja is a human rights scholar, lawyer and a PhD candidate at Bond University, Australia.