The practice of the European Court of Human Rights when striking out applications

Abstract

This paper analyses how the European Court of Human Rights has applied Article 37 of the European Convention on Human Rights that gives it the power to strike out pending cases in the current context of an overwhelmed Court by individual applications. This article shows that the Court’s interpretation of Article 37, while being casuistic and pragmatic, has evolved along the principles of subsidiarity and procedural justice and that the Court has used its discretion, notably to end cases regarding the expulsion of migrants. Yet this tool has not been a way of disposing repetitive applications which account for half of the pending cases.

1. Introduction

The European Court of Human Rights (Court, ECtHR) has had case overload issues for many years. ¹ The invisible part of the iceberg includes not only inadmissible decisions but also cases struck out of the list. ² Yet, among the many tools available to dispose of applications, the capacity of the Court to strike-out cases under Article 37 of the European Convention of Human Rights (Convention, ECHR) has been inadequately researched. Historically, Article 30 (now Article 37 ECHR) which was inserted by Protocol 8 ³ in 1985 gave the Commission the power to strike-out cases from the list of pending cases for one of three reasons similarly listed in Article 37. According to this provision, the Court ‘may at any stage of the proceedings decide to strike an application out of its list of cases’ if it concludes that ‘(a) the applicant does not intend to pursue his application’ (the indication may be explicit or be deduced from his/her conduct), or that ‘(b) the matter has been resolved’ (if he/she has received full redress at national level) ‘or (c) for any other reason’. Even if one of these conditions is being met, the Court may decide to pursue the examination of the case under Article 37 (1) in fine and Article 37(2) also gives the discretionary power to the Court to restore an application to its list of cases.

The right of individual petition set up by the ECHR has rightly been interpreted as the cornerstone of the European system of human rights. Yet the access to the ECtHR is not and cannot be absolute, notably when more than 800 million citizens have become potential applicants. The applicant may run the risk not only of having his/her application declared inadmissible but also of having his/her case struck out of the list by the Court, the most invisible part of the already hidden part of the iceberg. In fact, the Court has used more extensively Article 37 during the last ten years. ⁴ As such this article will explore how the Court has applied Article 37. The aspect of costs and expenses will not be considered because it is too far from our main research question about the potential discretionary use of Article 37 in the context of an overwhelmed Court. To assess the Court’s practice on Article 37, several questions need to be addressed: what strategy has the Court adopted regarding the choice to be made between the legal grounds for striking out cases under Article 37? Does the Court vary its interpretation according to the different legal grounds for striking out cases, or has it depended more on other factors such as the terms of the agreement proposed by the respondent State? Finally, has the Court used Article 37 (and particularly the general legal ground (c)) to speed up the examination of a certain type of cases? ⁵ In fact, repetitive cases, meaning cases raising issues already decided by the Court in previous judgments which have not been successfully implemented by the State, have become a crucial issue for the Court and Article 37(1) may be employed as a useful case management tool to address similar applications. The literature thus far has concentrated on the procedure and content of friendly settlements ⁶ and unilateral declarations which account for a large proportion of cases struck from the list. Since 1999, 45175 cases have been struck off the list. Among these cases, 12736 were struck off after a friendly settlement and 7799 after a unilateral declaration. ⁷ An in-depth analysis of the Court’s global interpretation of article 37 has not yet been made.

The methodology of this research included a systematic collection and analysis of the cases, of the instructions elaborated by the Court, and of the separate opinions which are helpful to understand the conflicting views. The methodology also incorporated a quantitative survey of a representative sample of cases available in the HUDOC database ⁸ that pertain to Article 37. The author focused on the 2012 and 2016 Chamber cases to investigate contemporary practises after Protocol 14 ⁹ was implemented, and before and after the rule change that was entered into force on September 2012. ¹⁰ Regarding the Committee’s decisions, the systematic analysis focused on specific months in 2012 and 2016 during which a large number of cases was covered. ¹¹ The author covered all the Grand Chamber cases it struck out because based on the assumption that applications submitted to the Grand Chamber at this stage were necessarily all important. ¹² In total 631 cases were analysed. ¹³ The analysis of the legal basis allowed to see discrepancies dependent on the composition of the Court: the legal basis for most Grand Chamber cases was Article 37(1)(b), ¹⁴ while most Chamber and Committee cases were based on Article 37(1)(a). ¹⁵ In some cases, no precise legal background is mentioned. ¹⁶ 45% percent of the decisions and judgments under scrutiny were adopted under the basis of article 37(1)(a), about 30% under (c) and 14% under no specified legal ground. From these figures, two lessons may be drawn: first, the Court may hesitate as to the precise legal ground to strike the case out of the list; second, there exists a high proportion of cases dealt with under paragraph (c) with the risk of a discretionary use made by the Court.

Cases where the applicant informed the Court of their willingness not to proceed are quite specific and are dealt with separately in Section 1 of this article. Then this article demonstrates that the Court has made a distinction between paragraphs (b) (see Section 3 below) and (c) (see Section 4 below) in terms of the discretionary power it has. Yet, some peculiarities exist when friendly settlements have been concluded (see Section 2). Eventually the two safety clauses in article 37(1) and (2) have not often been used (5).

2. Conditions linked to the applicant

According to the explanatory report of previous Article 30(a), paragraph (1)(a) covered both the case of an applicant who expressly or implicitly (by his/her conduct) withdraws his/her petition. Thus Article 37(1)(a) is not applicable when ‘the applicant gave a clear indication that he intended to pursue his application’. ¹⁷ Three categories of cases have been distinguished by this author for falling within this category: the explicit (a) and implicit (b) willingness of the applicants not to proceed with the case, and the death of the applicant(s) (c).

2.1. The explicit willingness not to pursue a case

Many cases belong to this first category, which covers situations in which the applicant(s) or a representative submit a final declaration indicating that they would like to withdraw the case to the Court or Registry. Chamber ¹⁸ and Committee cases ¹⁹ offer a good illustration of this category. The expression of interest to withdraw is usually sent by the applicant’s representative to the Court. When the applicant directly sends the information, the Court ensures the intention to withdraw is real by requiring reiteration and/or an explanation. ²⁰ If available, a representative will confirm the information. ²¹ The expression of interest to withdraw may be the result of an agreement signed before a national body by which applicants renounced their right to lodge and pursue an application to the Court. The validity of this renunciation must be unequivocal, otherwise there would be an abuse of the right of individual application. ²² Should the applicant change his or her mind and wish to proceed with the application, the Court may nevertheless strike the case out of the list as long as the ‘representative’s confirmation of her withdrawal from the case was clear and unequivocal, and that there was no indication that the request to withdraw had not been freely made, at the applicant’s initiative’. ²³

In other cases, ²⁴ the willingness not to pursue the examination of the case is expressed in stronger words, often following the conclusion of a friendly settlement and the payment of a just satisfaction by the respondent State. The Court then refers to both Articles 37 (1)(a) and (b). ²⁵ The expression of interest to withdraw must be ‘clear’ and ‘unequivocal’. ²⁶ Priority is given to the applicant’s wish despite the representative’s objection to it. ²⁷ However, the task of determining this is not always easy for the registry who is only indirectly in contact with the individual applicant. In more cases, the willingness not to have the case examined is implicit.

2.2. The implicit willingness of the applicants

In many cases an implicit willingness to withdraw a case will be deduced from the lack of reply by the applicant and their representative to the registry’s communication, ²⁸ or through a letter sent by the representative informing the Court of the measures adopted by the government. ²⁹ In these circumstances, following proposals made by the government as to the applicant’s situation that has Court approval, applicants are notified of the Court’s intention to strike them out of the list. Applicants are invited to comment on these proposals by a precise date and warned that no reply within the deadline will be interpreted as an implicit unwillingness to have the case examined. ³⁰

Further, implicit unwillingness to proceed with the case may result from the applicant’s behaviour and changed situation. For instance, in the Muhammed Jemeal v. the Netherlands case, the applicant, an Iraqi national, alleged a violation of her rights under Article 3 ECHR as she was expelled to her country. However, it turned out that she had voluntarily returned to Iraq. ³¹ When an applicant’s resident country has changed, it is also difficult for the Court to assess whether the applicant has left the former country ‘voluntarily’ or not and subsequently whether the case still needs examining. ³²

The Court has frequently interpreted the loss of contact between the applicant(s) and the representative(s) as a lack of interest by the applicant(s) to have their case examined for the reason that ‘such contact is essential both in order to learn more about the applicant’s particular situation and to confirm the applicant’s continuing interest in pursuing the examination of his or her application’. ³³ Representatives need instructions from their clients after new documents have been produced by the government. Among a great number of the cases examined in this research, the official letters sent by the Court were returned, or clearly notified as neither received, claimed, nor collected. Applicants are obliged to inform the Court or their representatives of a change of address in conformity with Rule 47(7) of the Rules of the Court. ³⁴ If a representative does not reply, the Court may assume that the applicants are no longer willing to have their case examined. ³⁵ However, the difficulty for some vulnerable groups such as detainees or migrants to freely correspond with the registry of the Court is an issue requiring serious attention. ³⁶ In some cases, the applicant may be appointed a new representative. Yet, the Court interprets the ‘applicant’s failure to keep the law firm which had filed the present application on his behalf informed of his whereabouts’ as a ‘loss of interest in the proceedings’ under Article 37(1)(a). ³⁷ However, the loss of contacts between the applicant and the authorities is no reason to close the case. ³⁸

The next Section explores the impact of another change in situation, that of the death of the applicant, on the examination of a case.

2.3. The applicant’s death

Should the Court continue to examine the application after the applicant’s death? In cases where the applicant’s heirs have expressly shared an interest in having the application examined, how would the Court make its decision?

As a rule of thumb, the Court considers two conditions: ‘whether or not the persons wishing to pursue the proceedings were the applicant’s close relatives…and, as a second criterion, whether the rights concerned were transferable […]’. ³⁹ Regarding the first criterion, the applicant may have no heirs, ⁴⁰ or the applicants’ heirs may not wish to pursue the application. ⁴¹ As to the individuals who can legitimately claim to pursue the examination of a case, the Chamber, in the case Sukhomlinov v. Russia, ⁴² considered that a broad perspective must be adopted because ‘human rights cases before the Court generally also have a moral dimension’. Yet, the Court must check the existence of the alleged family or the closeness of the relationship. In the Leger v. France case, the applicant’s niece who wished to pursue the applicant’s case ‘did not appear to have ever visited the applicant in prison’ and did not reply to the government’s comments on the lack of family relationship. Thus, the Court struck the case off the list. ⁴³ Regarding the second criterion, the Court states that ‘cases involving pecuniary claims’ can be transferable to the deceased applicant’s heir’. However, ‘certain other rights, such as those guaranteed by Articles 2, 3, 5, 8, 9 and 14 were of an eminently personal and non-transferable nature’. ⁴⁴

The next Section discusses how friendly settlements offer another opportunity for the Court to close cases, but now based on circumstances that are not linked to the applicant.

3. Striking cases off the list after the conclusion of a friendly settlement: A lenient control

Within the sample of this quantitative and qualitative study, 106 cases were resolved via a friendly settlement (16.8% of all our cases), a large proportion of which were dealt with by a Committee. ⁴⁵ Here the Court does not consider whether the matter has been solved as it would do under Article 37(1)(b). A check against the composition of the Court reveals a huge discrepancy in terms of the legal basis for the decisions made. Most of the Grand Chamber’s friendly settlements (92%) applied Article 37(1)(b). Whereas for Chamber cases 82% do not specify any particular legal basis, 11% applied Article 37 (1)(b) and 7% applied Article 37 (1)(c). ⁴⁶ It seems that the Court applied Article 37(1)(b) ⁴⁷ where the measures adopted were such that the matter can be considered as solved, in particular when the applicant expressly approved the measures adopted. ⁴⁸

In all of these cases, the Court only exercises a minimum check. The Court has almost never opposed a friendly settlement. However, the Court must check that the agreement is based on the ‘respect for human rights as defined in the Convention and the Protocols thereto’ in conformity with Article 39(1) ECHR. Rule 62(3) is even clearer and more prescriptive by the explicit requirement to verify this before striking the case off the list. This check is crucial as victims and their representatives are not on an equal footing with respondent States. ⁴⁹ This obviously requires consideration of the content of the settlement itself. The Court has adopted a casuistic and pragmatic approach. In some cases, the Court did not even comment on the content of the settlement ⁵⁰ or did not even mention it at all. ⁵¹ However, in most decisions and judgments, the Court uses the expression that the agreement ‘is equitable within the meaning of Rule 75 para 4 of the Rules of Court and that it is based on respect for human rights […]’. ⁵² Friendly settlements which conclude with the payment of a just satisfaction, often relate to complaints about an unreasonable length of proceedings, ⁵³ and the amount of money allocated is usually under 2,000 euros. ⁵⁴ Yet, when the State only offers to pay money to compensate for a serious violation, is the settlement ‘based on respect for human rights as defined in the Convention’? ⁵⁵ Where is the red line? In a dissenting opinion in the case S.J. v Belgium, Judge Pinto de Albuquerque opposed ‘the apparent cost-benefit strategy consisting in “buying” a strike-out decision and thus resolving the situation of the present applicant in order to remain free “to do business as usual” with all other foreign nationals in a similar situation’. ⁵⁶ The explicit acknowledgment of a violation of the Convention is not a condition to have the case struck off the list. ⁵⁷ A payment ex gratia may be combined with an explicit acknowledgment of a violation. ⁵⁸ Thus the Court seems quite flexible as to the position adopted by States.

In fact, the Court does not pay any attention to measures other than the payment of just satisfaction, except if the State explicitly refers to them. ⁵⁹ It is the responsibility of the Committee of Ministers to ensure such measures are adopted before closing the case. ⁶⁰ The same goes for general measures with the aim of preventing future similar violations, such as changing the rules or reversing case law. In the Grand Chamber judgment Lindner and Hammermayer v. Romania, the Court took note of the friendly settlement including the restitution by the State of the applicants’ property. ⁶¹ Yet when the friendly settlement was concluded in the context of a pilot judgment, the Court in the Broniowski v. Poland case held that ‘the notion of “respect for human rights”“ requires examination of the case also ‘from the point of view of “relevant general measures”‘ ⁶² As such, the agreement should necessarily incorporate individual as well as general measures ‘aimed at resolving the systemic problem […]’. ⁶³ Here the Court often relies on the Committee of Ministers’ supervisory control. ⁶⁴

By this analysis this author wishes to confirm that the Court has become more concerned by the existence of an agreement itself rather than by the content of the measures promised by the defendant State. ⁶⁵ The role taken by the Court thus differs from its control assumed under article 37(1)(b) when the matter has been interpreted as solved.

4. Departing from the announced rigorous approach under 37 (1)(b) ECHR

Striking a case off the list also occurred many times as a consequence of the measures proposed or adopted by the government to solve the case, particularly in Grand Chamber cases. The Court referred to Article 37(1)(a) and (b) when the applicants expressly stated that they did not want to pursue the examination of their case following the measures adopted by the government. ⁶⁶ Moreover, the Court has made it clear that the reply to be given under article 37(1) does not depend on the issue as to whether the applicant is still considered as a victim under Article 34. ⁶⁷ The main difference for the applicant is that the Court still has the opportunity to restore the case under Article 37(2) as discussed below, whereas the loss of the victim status (which implies the State acknowledges the violation and adopts some reparative measures) leads to an inadmissibility decision. ⁶⁸

In the instructive Association SOS Attentas and De Boëry v. France case, the Court considered each legal basis. As the applicants had expressly confirmed their willingness to pursue the examination of the case, the Court could not apply Article 37(1)(a). Under Article 37(1)(b), the Court noted that, for the matter to be regarded as resolved and ‘that there is therefore no longer any objective justification for the applicant to pursue his application, it is necessary to examine, firstly, whether the circumstances complained of directly by the applicants still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed’. ⁶⁹ This two-step approach has become the norm.

The ‘objective justification for the applicant to pursue his application’ seems to require an objective examination, and the Court considered that ‘this approach reflects the structure of the Convention’s supervisory mechanism, which provides both for a reasoned decision or judgment as to whether the facts in issue are compatible with the requirements of the Convention (Article 45), and, if they are not, for an award of just satisfaction if necessary (Article 41)’. ⁷⁰ This objective assessment profoundly differs from the subjective appreciation that seems to result from Article 37(1)(c). Thus, the question is by what sort of supervision the Court (often the Grand Chamber) ⁷¹ operates and whether this has been reflected in the structure of the supervisory mechanism. This expression seems to refer to the control conducted by the Committee of Ministers under Article 46 ECHR. This consists of assessing three elements: the payment of just satisfaction; if necessary the adoption of individual measures to afford restitution in integrum; and the approval of some general measures to avoid repetitive cases. Only in one case ⁷² the Court was inspired by the assessment made by the Committee of Ministers in a similar case and showed satisfaction with the new case-law to avoid repetitive cases. In the Borotschnik and others against Austria decision, the Court struck the case off the list after listing individual as well as general measures adopted by the government to redress the victims and to avoid future violations. ⁷³

Yet these cases are exceptions. The practice of the Court has greatly departed from these cases, and the two-steps supervision has often been replaced by a global lenient approach. The El Majjaoui and Stichting Touba Moskee v. The Netherlands case is a good example of this interpretation where both steps are not being distinguished. ⁷⁴ By contrast, for cases dealt with under Article 37(1)(c), where there exists no condition for the matter to be solved, the Court requires minimum standard for striking the case off the list. In the Mostafa v. Italy case, as the applicant (who was under threat of expulsion to Iraq) got a resident permit for humanitarian reasons, the Court decided to strike the case off the list under Article 37(1)(b). ⁷⁵ In a case where the applicants had opposed the refusal of the Latvian authorities to regularise their stay in Latvia, ⁷⁶ having observed that the first applicant could obtain a permanent resident permit for stateless persons and that the two others might apply for permanent residence permits after a period of five years had elapsed, the Court concluded that there was no ‘real and imminent risk of deportation’. ⁷⁷ It held that both conditions had been met despite the fact that the applicants doubted the possibility of applying for resident permits. ⁷⁸ In an interesting recent case concerning the risk of expulsion of a Pakistani citizen, the Grand Chamber decision to strike the case off the list was adopted by 16 votes against 1 under Article 37(1)(b). ⁷⁹ Dissenting Judge Sajo noted that a ‘tolerated residence’ could not be compatible with the ECHR. For him, referring to the principle of subsidiarity was not tolerable, ‘otherwise any other reason could be used to justify a strike-out, and the Court would be exercising unfettered discretion’. ⁸⁰

If the supervision under article 37(1)(b) has been more formal than substantial I will now demonstrate what use the Court has made under article 37(1)(c).

5. Striking out cases under paragraph c: towards soft interpretation

In the Association SOS Attentas and De Boëry v. France case, the Court held that ‘it is clear from this provision that the Court enjoys a wide discretion in identifying grounds capable of being relied upon in striking out an application on this basis, it being understood, however, that such grounds must reside in the particular circumstances of each case’). ⁸¹ The same interpretation has been repeated many times. Therefore, Article 37(1)(c) offers a wide margin of appreciation for the Court to close a case on a case-by-case approach for any other reason not covered by paragraphs a and b, which contradicts what had been foreseen by the drafters: ‘The authors of the Protocol considered that the scope of this sub-paragraph should be limited to cases which are comparable to those mentioned in sub-paragraphs a and b, for example, where the applicant has died and his heirs do not have a sufficient legal interest to justify the further examination of the petition on their behalf’. ⁸² The following Section analyses the cases covered by this provision, starting with those where the respondent State proposes a unilateral declaration.

5.1. Striking cases off the list after the respondent State has submitted a Unilateral Declaration

Unilateral declarations were proposed by the respondent State in 159 cases (25, 2% of the sample), nearly all of which were dealt with by a Committee. ⁸³ There is wide consensus that Article 37(1)(c) applies to unilateral declarations, ⁸⁴ a legal basis recommended by the Lord Woolf Report. ⁸⁵ Contrary to friendly settlements, a unilateral declaration occurs when the applicant failed to give his/her approval, or sometimes without any prior attempt to reach a friendly settlement. ⁸⁶ The Court detailed in-depth, but not exhaustively, the conditions for a unilateral declaration to be valid in the Tahsin Acar v. Turkey ⁸⁷ case. More details were provided by the Grand Chamber in the Jeronovics v. Latvia judgment. According to the latter, deciding whether to strike out a case on the basis of a unilateral declaration will depend on:

the nature of the complaints made, the nature and scope of any measures […] and the impact of these measures on the case at issue; the nature of the concessions contained in the unilateral declaration, in particular the acknowledgment of a violation of the Convention and the payment of adequate compensation for such violation; the existence of relevant or ‘clear and extensive’ case-law in that respect […]; and the manner in which the Government intend to provide redress to the applicant and whether this makes it possible to eliminate the effects of an alleged violation. ⁸⁸

The Grand Chamber also added that ‘the Court scrutinises carefully the Government’s undertakings referred to in their unilateral declaration […] and, where appropriate, interprets the extent of these undertakings in the light of its case-law’. ⁸⁹ From these statements, the Court seems to be willing to apply a reinforced control, which would compensate the lack of supervisory power by the Committee of Ministers in cases where unilateral declarations were approved. ⁹⁰ Moreover, according to Rule 62A(1b) of the Rules of the Court, a unilateral declaration must ‘clearly acknowledge […] that there has been a violation of the Convention in the applicant’s case together with an undertaking to provide adequate redress and, as appropriate, to take necessary remedial measures’. Therefore it is not exceptional that the Court rejects unilateral declarations. ⁹¹

As to the requirement of a ‘clear acknowledgment of a violation of the Convention in respect of the applicant – with an explicit indication of the nature of the violation’, ⁹² in practice the Court does not require this acknowledgment to be explicit but it is satisfied with an ‘explicit’ acknowledgment. ⁹³ That acknowledgment may be the only measure of redress offered in a unilateral declaration. ⁹⁴ Overall, the practice of the acknowledgment has been described as “vague”. ⁹⁵ Logically, the Court is less rigorous when well-established case law on the issue already exists. The sample for this research contained only one case where it was expressly mentioned that, after a request made by the Registry of the Court, the government ‘agreed to have the phrase payment “ex gratia” removed from the text of their unilateral declaration’. ⁹⁶

As to the provision of “adequate redress” which means ‘in line with the Court’s case-law on just satisfaction’, ⁹⁷ the Court checks that ‘the sums proposed are reasonable and in keeping with the Court’s criteria governing awards under Article 41’ ⁹⁸ which assess whether the sums ‘are comparable with the Court’s awards in similar cases’. ⁹⁹ The Court does not pay any attention to the very common complaints by applicants about the insufficient amount of money paid in compensation. ¹⁰⁰ Applicants usually disagree with the content of the declaration for this very reason. According to the survey conducted by Helen Keller and David Suter, on average for unilateral declarations, ‘governments proposed 3.495 euros per recipient, whereas the Court awarded an average of 7.416 euros in its judgments’. ¹⁰¹ Some amounts are undisputed. ¹⁰² However, in some cases the proposed amount was very low. ¹⁰³

Despite the explicit requirement for ‘remedial measures’, there seems to be no room for non-pecuniary measures. For instance, in the Kirmizioglu v. Poland decision, the Court approved the unilateral declaration limiting itself to a payment of 5.000 euros, whereas the issue concerned the impossibility for the applicant to have his link with his son recognised. ¹⁰⁴ In the Zaluska v. Poland case, the Court did not reply to the argument raised by the applicant regarding ‘the pending proceedings against him and the ban on leaving the country being still in force’. ¹⁰⁵ In another decision, where the applicant had been unlawfully detained with no possibility of having his/her record deleted (and so facing a refusal to get a passport and to have a job), the Court was satisfied with a unilateral declaration by the government offering to pay 2.500 euros to the victim. ¹⁰⁶

The check by the Court seems more lenient when it comes to general measures. According to the policy and practice adopted by the Court on Article 37, the State has an obligation to take measures ‘where [there are] appropriate undertakings of a general nature’. ¹⁰⁷ Except in repetitive cases to a pilot application such as in Dmitrenko and two other applications v. Russia, ¹⁰⁸ the unilateral declaration nearly never mentions general measures. ¹⁰⁹

The following Section shows that when no unilateral declaration has been proposed by the State, the Court has interpreted the reasons to strike cases off the list very broadly.

5.2. Using the Subjective and Casuistic Approach under Article 37 (1)(c): ‘Employing Avoidance Strategically’ In Expulsion Cases ¹¹⁰

How has the Court interpreted the subjective and casuistic approach under Article 37(1)(c)? ¹¹¹ The concern about the wide discretion left under paragraph (c) was expressed when enacting Article 30, but the drafters at the time thought it appropriate to rely on the Commission’s wisdom. ¹¹²

Surprisingly, all the cases under this examination were brought by applicants who were under the threat of an expulsion that potentially contravened Article 3 of the Convention. Striking the case off the list because the application was still under examination by the national authorities is a logical consequence of the principle of subsidiarity. ¹¹³ Yet detailed analysis of the case-law reveals that the Court has offered States various degrees of replies, departing from the previous practice of the Commission when it struck a case off the list under paragraph c) when the applicant under risk of expulsion was allocated a permit to stay and work for one year. ¹¹⁴ The following cases demonstrate a slippery slope, confirming that ‘[w]hen humans become migrants’, ‘the Court seems to demonstrate a fear of upsetting States. ¹¹⁵ Getting a residence permit (or the promise to get one), even for a short period of time, is probably the easiest situation for the Court to deal with. ¹¹⁶ A written or an oral promise not to expel the applicant ‘immediately’ or ‘in the near future’ ¹¹⁷ satisfies the Court. Thus, in the Khan v. Germany case, the Court, referring to the subsidiary nature of the Convention, held that getting a residence permit was not an absolute condition as long as there existed no risk of being expelled ‘at the moment or for a considerable time to come […]’. ¹¹⁸ Along with the new procedural approach recently favored by the Court, ¹¹⁹ the perspective not to be expelled before a full examination of the case as well as the remaining possibility to lodge a new application before national Courts or the Court, justify closing the case. ¹²⁰ This allows the Court to avoid, or at least to postpone, the examination on the merits of sensitive issues that may damage its legitimacy. ¹²¹ In these migration cases, the Court perfectly knows States are quite reluctant to implement judgments where the Court concludes there was a violation of the Convention, which consequently endangers the legitimacy of the Court. The Court has certainly opted for the less visible and less costly avoidance mechanism as there still exists for the applicant a theoretical possibility to restore the case. The Court adopts a one-size-fits-all-approach, whether the risk of deportation exists to another European State or towards a non-European State. The Court was probably led on this path by the convergence of a concern in terms of legitimacy (this is a sensitive field where States usually get irritated and want to keep more discretion ¹²² ) and of normative restraint. The Court’s subsidiary approach has changed over the years because of the pressure overtly exerted by some Member States. ¹²³ What is at stake is less a consideration of judicial economy (otherwise Article 37(1)(c) would have been used for other articles of the ECHR and for other matters) than a question of self-restraint on sensitive issues. As is clarified in the next Section, safety clauses offer no rescue.

6. When safety clauses become unsafe

Two safety provisions can be used by applicants. First, Article 37 in fine states that ‘the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires’ and second, a restoration of the case may be possible.

The provision contained in Article 37 in fine is completely vague, thereby opening the door to various interpretations. The Court, at least in one judgment, considered Article 37 in fine as ‘reason of ordre public’. ¹²⁴ In many cases, the Court only noted that ‘in accordance with Article 37(1) in fine, it finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols, requiring the continued examination of the case without any justification’. ¹²⁵ The Court referred to this condition in only one decision dealt with under Article 37(1)(a). In the Polovynko v. Ukraine and Russia and three other application decisions, the Court argued that similar cases were pending before it and that it ‘will therefore have an opportunity to determine legal issues involved in these cases’. ¹²⁶

Indeed the Court interpreted this provision quite specifically as meaning that the Court should check whether ‘clear and extensive case-law’ ¹²⁷ exists on the same subject. However, this argument is also used under previous paragraphs, in particular to admit the validity of a unilateral declaration. ¹²⁸ In some cases, the Court seems to embrace the question of redress under this same issue. ¹²⁹ Moreover, the Court does not exclude taking into account cases against other States for the adoption of a clear and extensive case law, ¹³⁰ nor that one previous case suffices, ¹³¹ thus referring to the expression of ‘existing case-law on the topic’, ¹³² or ‘clear case-law’. ¹³³

The Court expanded its practice in the Zuyev v. Russia case, noting that a further examination of a case would be necessary when that case raises ‘questions of a general character affecting the observance of the convention’. ¹³⁴ This applies for example where there is a need to clarify the States’ obligations ¹³⁵ or to induce the respondent State to resolve a structural deficiency. ¹³⁶

Among the research sample of cases, only three cases were found where the Court decided not to strike the case off the list. In the Djokaba Lambi Longa v. the Netherlands decision concerning the applicant’s continued detention in the United Nations Detention Unit, the Court considered ‘that the application touches on essential aspects of the functioning of international criminal tribunals having their seat within the territory of a Contracting State and being vested with the power to keep individuals in custody’. ¹³⁷ In the Konstantin Markin v. Russia judgment, the Court noted that ‘the difference in treatment under Russian law between servicemen and servicewomen as regards entitlement to parental leave- involves an important question of general interest not only for Russia but also for other State Parties to the Convention’. ¹³⁸ In the recent F.G. v. Sweden decision, the Court considered that the case raised important issues ‘concerning the duties to be observed by the parties in asylum proceedings’. ¹³⁹ Thus the question under scrutiny by the Court must concern several, if not all, States parties to the ECHR. An interstate case cannot end the interest of an individual to have his/her case examined on the same issue because ‘in individual applications the Court has the competence to issue just satisfaction awards for pecuniary and non-pecuniary damage suffered by individual applicants and to give indications under Article 46 as to any general or individual measures that might be taken’. ¹⁴⁰

As to the possibility to restore the case, in the whole history of the ECHR only five cases were revisited by the Court ¹⁴¹ and only two of those ¹⁴² were restored to the list. Furthermore, in one case, the restoration was justified by the failure of the State to comply with the friendly settlement. ¹⁴³ So, this safety valve may still be useful.

7. Conclusion

To conclude, the interpretation of the Court given to Article 37 relies increasingly on the concepts of subsidiarity and of procedural justice. This offers a larger margin of appreciation to States. The Court has progressively transformed the objective two-step approach foreseen in paragraph b of Article 37 into a vague and soft form of control. The wide discretion announced in Article 37’s paragraph c has been used to dispose of the examination of serious alleged violations regarding the risk of expulsion of foreigners. The intensity of the control operated by the Court has been more dependent on the content of the measures proposed by the State in each particular case than on the legal ground referred to. Globally, the interpretation given to Article 37 has favoured a pragmatic control with a tendency towards an increasing monetisation of human rights compliance. The dissenting opinions written by certain judges, notably in Grand Chamber judgments or decisions, ¹⁴⁴ have confirmed how controversial the decision to strike cases off the list may be. Thus the interpretation of Article 37 has been holistic and coherent with the evolution of the supervisory mechanism. Yet this article has revealed that Article 37 has not been used to dispose of the many repetitive cases the Court currently has to deal with, as could be suspected when starting this research.