There is little doubt that the system based on the European Convention on Human Rights and its protocols, with the European Court of Human Rights at its centre, is the most advanced regional human rights system which exists. Nevertheless, the real functioning of the Court faces a number of challenges. Which are the most important today? And which will be tomorrow?
Robert Spano is an Icelandic lawyer who graduated from the University of Iceland and the University of Oxford. He became a professor and dean of the Law Faculty of the University of Iceland. Furthermore, he was provisionally appointed the Parliamentary Ombudsman of Iceland. In 2013, he was elected as a judge of the European Court of Human Rights when his nine-year mandate started. Robert Spano has been President of the Court since May 2020.
Proceedings during the covid-period
The covid-period caught all of us unprepared, including international organizations and courts. How did the European Court of Human Rights adjust to the pandemic situation? Do you think that it slowed the Court down considerably, or it did handle the circumstances fairly well?
The answer actually is that we have done very well. Of course, it was an unprecedented period, especially in March and April 2020. We had to take dramatic action quite quickly, adapting with novel procedures in deliberations, using the written procedure more extensively because human to human contact was not possible. We had to take decisions vis-a-vis Grand Chamber hearings by video conferencing, which has been a great success. It has, I think, overall increased the legitimacy of the Court in the eyes of the external audience.
When it comes to mere objective productivity, the situation allowed us to proceed quite unhindered and the productivity actually rose between 2019 and 2020. So my answer is no, it did not slow us down. It was a challenge, but I think history will demonstrate that we have done very well.
Functioning of the Court
How do you assess the change from a renewable six-years mandate of a judge to a non-renewable mandate of nine years that the Protocol no. 14 introduced in 2010?
I think from the perspective of increasing traditional independence and not having judges relying on being renominated or reelected by their government, it was certainly a positive step.
What one may assess is whether the nine-year mandate is overly short. We know that many constitutional courts have a mandate of 12 years. There is an argument, I think, to be made that now we should reflect on whether the mandate should be extended from nine to 12 years for judges of the Court. I think that would give the judges more continuity in the development of the case law.
Do you think it is good that a national judge is present and decides in chamber cases, or it would contribute to the impartiality of decision-making if the national judge was not part of a chamber that is deciding a case from his or her country?
This is a question which relates to the current system. The current system is as it is. Under the Convention the national judge has to sit in Chamber cases. There are arguments for that. It is based on our Court differently from the European Court of Justice. We are here deciding cases to the end. We are applying the principles to the facts which requires knowledge of the national context and national law. It would be difficult for us to deal, at least with the most important cases in Chambers of seven or the Grand Chamber of 17, without the input of the national judge.
Now, of course, I understand that from the perspective of external appearance, this may seem somewhat counterintuitive, but that judge does not act as a national judge. The judge is a European judge. The judge has a duty to the Convention, not to his or her country. They are not representatives of their country.
The Court has recently faced backlash from some member states against its allegedly overly invasive jurisprudence. How can the Court counter such reactions?
The Court has always, historically, now and then been faced with backlash or a criticism from member states, which are the recipients of judgments where we find violations. That is simply the logical corollary of a human rights system.
The current backlash, which is the one you are alluding to, is however also a sign of the times where international institutions are facing increasing challenges and multilateralism as a concept of international relations is, as such, being challenged.
The Court cannot have a particular policy of countering such reactions. The role of the Court is to be a court. The role of the Court is to continue to decide cases professionally, objectively and impartially.
In this connection, how can the Court ensure that the member states as well as individuals understand its outcomes?
There are certain things we need to do and continue to do, and that is to be good communicators. We try to articulate our judgments as clearly as possible to explain why we have decided cases the way we do. And then on the other hand, we are explaining ourselves extrajudicially like I am doing as the President, giving speeches, taking part in webinars, giving interviews to explaining the context of the Court.
Ultimately, the Court needs to be supported as any court. It needs to be accepted. All the member states of the Council of Europe, all 47 of them, have accepted and repeatedly expressed their support and commitment to the Court.
Criticism of court judgments is part of the environment in which courts live. But that criticism should not proceed to the existential level. It should not be criticism leveled at whether the court should exist at all.
In 2014, the Court of Justice of the EU decided in its Opinion 2/13 that the EU cannot accede to the Convention as anticipated by the EU primary law. Are there any recent developments in this area? And should, in your opinion, the EU accede to the Convention?
There are relevant developments. The accession process has recommenced within the so called 47+1 group, which is now deliberating the issue, the Council of Europe and the EU Commission, along with the 47 member states. So hopefully we will see some positive development moving forward.
The presidents of the Court, my predecessors and myself, have all said that from the perspective of the Convention and from the perspective of harmonization and coherence of European human rights protection, the Union acceding to the Convention is, of course, the right step to take.
Mainly, it is an obligation of the EU. The EU itself has made it a positive obligation to accede to the Convention, thus accepting at the minimum that standards under the European Convention on Human Rights are to be adopted by EU institutions themselves.
The final point that I will make, and one of the reasons why EU accession has become even more important, is that it is fundamentally, at its core, a rule of law issue. It is important for the EU as a rule of law area to fulfill its promise under the treaties, because legal uncertainty is a rule of law threat itself. Moreover, having variations in the case law of the ECJ and the Strasburg court can create and will create rule of law problems.
So there are developments, I am hopeful and I am of the view that it should end up with a result in line with the ideas of EU accession to the Convention.
In 2018 the Protocol no. 16 came into force that enabled the Court to give advisory opinions regarding interpretation or application of the Convention and this year the Protocol no. 15 becomes effective which shortens the time limit for lodging an application from six to four months. Do you think these recent changes will contribute to better functioning of the Convention system?
I think that the most fair answer is that it remains to be seen. Protocol 16 is still within its infancy as it has recently begun to operate. The first experiences that we have are positive. It is a challenging new part of the system because each of the requests, which we consider to be admissible, requires a lot of resources. Nevertheless, the underlying philosophy of Protocol 16 is one which I wholeheartedly endorse.
As to Protocol 15, it will come into force on August 1st. That is a different protocol in the sense that it relates first and foremost to access to the institution by reducing the time limit, as you mentioned. Furthermore, it enacts in the preamble the principles of subsidiarity and margin of appreciation, which I do not expect will change at all the case law of the Court, because we have already integrated and embedded these principles into our jurisprudence. However, it gives a statutory textual basis, which while we are moving forward will to some extent reinforce our reliance on these principles.
Currently the Court is dealing with much more inter-state cases than it used to in the past. In what way is deciding these type of cases different from those coming from individuals?
First, interstate cases are usually far more factually complex. They deal with a wide range of events, often over a long period of time. The pleadings and observations by the parties are far more extensive than in a traditional individual application case. Such cases often necessitate the Court in evaluating and assessing structural principles of international law and their conceptual connection with the Convention. In that sense, they are also legally very complex.
So all in all, interstate cases are challenging and each of them requires a lot of energy from the Court, from the judges and from the registry.
Backlog and domestic implementation
In 2020, out of the 47 member states, only four – Russia, Turkey, Ukraine and Romania – are responsible for 70% of the pending applications. What can be done to address the fact that only a very small number of states are able to overwhelm the system?
In short, the answer is that it is for the member states themselves to take action to remedy the potential defects or the potential structural problems that create the origins of the applications that later come to us. The Court attempts with an objective case processing system to deal with these cases as expeditiously as possible by grouping cases or by finding leading judgments. However, there are limits to how much the Court can do. It goes without saying that under the principle of subsidiarity, it is for the member state itself to be proactive in protecting and preserving human rights and thus lowering the number of applications that come to the Court.
Secondly, there is a clear division of labor between the Court and Committee of Ministers of the Council of Europe which is monitoring how judgments are implemented at the national level. I think the Court can and does in its judgments to some extent provide for general and individual measures to help the implementation. But ultimately, the bottom line is – domestic implementation is the responsibility of the member states.
A number of applications originate from a mere dissatisfaction with the decisions of domestic courts. They are often declared inadmissible as manifestly ill-founded. To what extent is the overload of the system caused by such type of applications in contrast to cases that the Court decides to deal with on the merits?
We have a system in which any citizen, any person under the jurisdiction of the 47 member states has a right to submit an application to the Court. I do not think these types of applications now after the reforms that we have introduced with the single judge system, with the filtering, with Rule 47, with well-established case law, are overloading the system. It is actually the cases that are meritorious, which constitute the backlog problem.
The plan to increase efficiency
There is a considerable critique that the Court is unable to deal with the increasing number of complaints in a reasonable time. What can be done to make the process more efficient? Could you briefly explain the new case-processing strategy?
I think to answer this question, it is good to be aware of the history. The Court, at the beginning of the Interlaken process, was faced with a backlog of 161,000 cases in May 2011. The Protocol 14 came into force in mid-2010, with the introduction of the single judge system. Subsequently, the Court has, I think, done a remarkable job in reducing the backlog.
We are talking about overall number of cases of about 70,000. What remains is, as I mentioned, the backlog of the meritorious cases, in particular what we call ‘category IV’ cases, which are approximately 18,000.
Recently, when I began my presidential mandate, we have started a further reform process, which is based around two pillars. The first is that when it comes to the meritorious cases, we will have to streamline as far as possible the initial identification of those cases, to make clear which of the 18,000 are the most important, so called impact cases.
So earlier, all cases in the category IV were treated in the same way?
Yes, we have not done that before. Impact cases in that group have usually been dealt with chronologically. Now what that means is we will see fewer cases being dealt with in chambers of seven, but they will be the most important cases.
Let me give you an example. The case of Vavřička and others vs. the Czech Republic was launched in 2013 but was finally decided in 2021. Under the new system Vavřička would have been decided in two or three years, because it would have been identified as an impact case and it would have immediately been communicated to the government.
So as for the cases that are currently dealt with on an average in chamber in about six or six and a half years, we are hoping that within the new system those types of cases will be dealt with in two or three years. This new reform process which we started to implement in the beginning of this year, will take some two to three years to implement.
And the second pillar?
The second pillar is about what do with the remaining cases. Instead of processing them in chambers of seven, we will now adopt a summary judgment system with using committees of three judges and using the well-established case law component under the Convention more robustly.
In other words, everyone should get a finding by the Court within a reasonable time. But we will make a distinction more robustly between impact cases, and well-established case law cases.
This will take quite a bit of time, the Court is a big institution with many cases and with a lot of staff. I am hopeful that towards the end of my mandate, we will have seen tangible results, but then we must continue in the future to implement the system.
The Court’s future
At present, potential victims need to send their applications physically by post. Do you plan to make the process of submission more user-friendly and also enable submissions in a digital form?
Yes, the idea certainly is, and I do not want to give any timeline, that we will be moving soon to a more digitally oriented reception system, in particular a more digitally based registration system.
I do not exclude that we will use even algorithms to help us in the initial identification of cases. That is something, I want to be clear, is a decision that has not been taken, we need to look at what are the options there. But for a mass bulk case system like ours, using information technology will be very important for the future.
Do you see a need for any big reform within the next 10 years? Would for example a mandatory representation by a lawyer, establishing a submission fee with a certain exemption system, or maybe a transition to a system able to deal only with impact cases such as the US Supreme Court, be something that should be considered?
I think it is too early to tell. At this point, while we are sitting here, my sense is that the reforms that we are introducing now will hopefully be suitable and sufficient in the years to come.
However, this will depend on how the European legal space develops, because it does not take much for our system to be overloaded with cases. It all depends on the situation in the member states – what kind of cases are arising and what multitude of cases are arising.
So I think this answer should be given in about three to four years. We will see how things develop. I would not exclude, and it would be foolish of me to exclude, that in the future, there will be a need to look at some of the structural parameters of the system.
The role of a President
I can imagine that a job of a judge at the ECtHR and later a President of the Court is very time-consuming and intellectually demanding. Do you have time for any leisure activities that you do on a regular basis?
The premise of your question is absolutely correct. The job of President of this Court is never ending, working seven days a week, all the time. It is as it should be. This is of course, a very, very difficult high-profile job and one needs to do it well.
I am a relatively young guy. So I came into this job with a lot of energy, which I think is very useful. I often think about most of my predecessors who were quite older than me, it must have been very taxing for them. I keep myself in shape. I do a lot of exercise, running, swimming. I play golf, I spend a lot of time with my family, traveling. I am a voracious reader, I read constantly.
You may ask, when do I have time for that? Always in the evening I read. I read a lot of political science, history, especially political history. One needs to know the context in which we are living. The present is always a combination of the past, and the present is always a prediction for the future.
So yes, even though I work very much, I am quite a disciplined person, I think. I am able to organize my time. But it is a very challenging, difficult job, in particular in these times. The situation with the Court in the wider European legal space is, as you mentioned with some of your questions, one which requires dedication, and that one proceeds with calm heart, but a brave mind.
Okay, then thank you very much for your time.
 The interview took place in July 2021.
 An interview on the work of the Department for the Execution of Judgments of the Council of Europe can be approached in the Bulletin of Human Rights of September 2021.
 Category IV cases cover well-founded applications not involving core rights under Articles 2, 3, 4, and 5(1) of the Convention. See the Court’s Priority Policy here.
 ‘Meritorious cases’ relate to the applications that are not declared inadmissible and the Court adjudicates on the merits whether there was a violation.
 Předseda Evropského soudu pro lidská práva, soudce Robert Spano, zdroj: © Council of Europe / Candice Imbert, edits. cropped.