The Visible and The Invisible of Justice in Strasbourg
Inspired by some of the questions underpinning the project “Who is the Court for? Bringing the Human (back) into Human Rights”, former ECtHR Vice-President Prof. Dr. Angelika Nußberger and current ECtHR Judge Dr. Kateřina Šimáčková discuss judges’ responsibility to provide relief to applicants. Focal points are recent procedural reforms affecting access to justice, the extensive yet often overlooked judicial work that does not result in published decisions, the persistent challenge of achieving gender balance on the bench, and their own personal legacies.
1. Amid the current legitimacy crisis and backlash, fostering loyalty has become particularly important for the European Court of Human Rights and international courts in general. As a means of fostering loyalty, the Court’s communication practices increasingly focus on visual media formats and storytelling to create a more positive and engaging image of the institution. This shift may influence how the Court is perceived, moving from merely a ‘Palace of Justice’ – where ‘purely’ legal issues are addressed and legal verdicts are delivered – to a ‘House of Stories’, stories of people who have suffered injustice and whose journeys often begin long before they arrive at the Court. As a judge or former judge, how do you view your responsibilities in shaping and contributing to these stories?
Angelika Nußberger: Judges are part of those writing these stories by judging the injustices at their core and by taking a particular aspect of injustice out of these stories. These stories are usually lengthy, and judges engage with them at a particular moment in time. However, the stories continue past the judgment because life goes on: the judgment must be implemented, and applicants might not be satisfied with the outcome, even if a violation is found. Judges are involved in these stories in a unique way, different from what one can perceive by reading the case law on HUDOC, which can seem like dry statements of facts.
For instance, in a case of alleged violence against children (which later turned out to be untrue), I came across a child’s diary in the case file, describing her relationship with her mother. It moved me deeply, but as a judge, I had to set those feelings aside, step back and deal with the concrete legal questions. Similarly, during hearings, judges might interact with the applicants. In my first Grand Chamber case (Kurić and Others v. Slovenia), involving the so-called “erased people” who had been removed from the registers in Slovenia, the experience was very intense: these supposedly ‘erased’ people were sitting right in front of us.
As judges, we can also follow-up on how judgments are received. In cases concerning Germany, I could watch the national news and see the applicants’ reaction to the Court’s decisions. I recall, for instance, a case concerning Article 3 ECHR where a prisoner had violently protested against being moved to another cell, and during this process, the guards had left him naked for several hours in a room that was not adequately heated (Hellig v. Germany). I thought he would be pleased that we found a violation of Article 3 ECHR for the conditions of nakedness, but I later learned that he was still dissatisfied because his primary concern – the cell transfer – had remained unresolved.
Kateřina Šimáčková: I agree with Angelika that, as judges, we are part of the applicants’ stories for only a brief time, yet we play an important role in shaping the continuation of these stories. This is particularly evident in cases from Russia, where applicants continue to bring their cases to the Court despite significant challenges. For many, including in high-profile cases like those involving Navalny, the mere recognition of violence or injustice can be very important. While we may not always be able to deliver the outcomes they seek, acknowledging that their rights are entitled to protection under the ECHR carries substantial meaning for them.
My first encounter with human rights was when I was working as an au pair in Frankfurt. I visited Strasbourg to see the Court, and I bought a copy of Vincent Berger’s book on the Court’s important cases (Case Law of the European Court of Human Rights: 1960-1987, Round Hall Ltd, 1989). It made me realise that, by studying law, I could help tell stories about where justice lies. While rigor and logic are essential in judgments, storytelling is equally crucial in explaining the significance of human rights.
2. But are there perhaps too many stories? Over the past decade, procedural reforms, such as the filtering mechanism (Protocol no 14) and the Impact Strategy in 2021, were introduced to manage the Court’s caseload. According to the Court’s latest annual report, these reforms appear to have been effective. By the end of 2023, the number of pending applications, although still high at 68,450, had significantly decreased from 74,650 at the end of 2022. Of the 38,260 applications dealt with in 2023, only 6,931 resulted in a judgment, with 6,386 applications dealt with by Committees and single judges handling 25,834 applications. What do these statistics reveal about the Court’s ability to deliver individual justice, the primary aim of the individual complaint mechanism? Moreover, as academics, we often focus on Chamber or Grand Chamber judgments, which represent only a small fraction of the Court’s workload. The bulk of the Court’s work, handled by single-judge formations and Committees, often goes unnoticed. What should we, as academics, understand about this less visible but crucial aspect of the Court’s work?
Angelika Nußberger: The numbers you just mentioned are quite different from when I started working at the Court. Back then, the Court was considered dysfunctional and at the risk of drowning under the caseload. At the beginning of the year 2011, there was a peak, with 170,000 cases brought to the Court. The current situation, fifteen years later, is not great, but we have learnt a sense of realism. We understand that giving detailed reasoning for obviously inadmissible complaints would mean that waiting times would increase even further.
I remember coming across a well-founded case that had been pending for ten years, and I wanted to cry! Judges don’t cry (laughs) but I wanted to because it felt like we were not doing justice. So, realism means that we need simplified procedures. You cannot have a Chamber procedure for every repetitive case.
I remember that, at some point, the registry would send out really unfriendly letters, basically saying: “your application was rejected and do not try again”. Now the tone has changed and some reasons for the rejection of the complaint are given. But it is helpful that researchers closely follow the Court’s approach, understand where and why cases fall through the cracks, and bring relevant issues to the table.
Kateřina Šimáčková: In September 2024, there were approximately 65,000 pending cases from forty-six States. Before becoming a judge at the ECtHR, I had never read such a large volume of documents. This tells you something about the Court’s workload. Most of them are not linked to Grand Chamber or Chamber cases: they are related to Committee or single-judge cases. Now that the Court has decided to publish the names of individual judges deciding in single-judge cases and those issuing interim measures, their responsibility will be more visible to the public.
I agree with Angelika that there is a need to find a balance between timely justice and thorough justice. Late justice is no longer justice. To address this, we have decided to identify impact cases and deal with them faster. These cases not only address issues that impact all of Europe but also help reduce the influx of future applications. Additionally, cases decided by Committees based on well-established caselaw also help manage the caseload, as they must be concise – limited to a maximum of 2,000 words – and draw on established formulas from existing case law.
Also, many cases end in friendly settlements, which don’t always result in concrete benefits for the applicant. I have an example from the Czech case law. For Roma pupils, real access to good education is lacking due to systematic discrimination in schools. In one case, the government offered a settlement to the applicant, granting him just satisfaction. However, he ultimately did not receive any money because his debts were so significant that the bailiff seized the compensation on behalf of his creditors.
3. We seem to be discussing the least imperfect system rather than a perfect one. The question, then, is: what are we ready to compromise? Gender balance on the bench has long been a topic of concern for the Council of Europe. However, despite efforts by the Parliamentary Assembly of the Council of Europe (PACE) to address women’s underrepresentation (in particular, Resolution 1366 (2004); Resolution 1426 (2005); and Resolution 1627 (2008)), significant progress has yet to be made. In the story of the Court, 18 (out of 47, now 46, sitting judges) has been the highest number of women sitting on the bench. So, we’d like to pose a question once asked of Ruth Bader Ginsburg, former Justice at the US Supreme Court: when will there be enough women on the bench of the Court?
Angelika Nußberger: When we stop discussing it, or when it is no longer an issue, that will be a signal that we have achieved sufficient representation. This mirrors the situation of the German Bundesverfassungsgericht where, for a long time, there was what we called a “Snow White scenario”, reminiscent of the fairy tale, because there were seven male judges and one female judge in one of the senates. Then, suddenly, a majority of women judges emerged, and the issue of gender balance receded into the background. So, I would argue that we will know we have enough women judges when this conversation is no longer necessary.
Kateřina Šimáčková: During my time at the Czech Constitutional Court, there were two women. After I left, that number dropped to one, but now there are four women on the bench. Despite women comprising over 60 % of all judges in the Czech Republic, very few occupy the highest levels of the judicial system.
In Strasbourg, the election of Siofra O’Leary as the first woman President is an important development, furthering the tradition of women Vice Presidents like Angelika, currently Gabriele Kucsko-Stadlmayer, and Ivana Jelić, who will begin her term on November 1st. Beyond just the numbers, their presence sets an example and provides hope for women students.
Talking about PACE’s efforts, another key development has been the move towards publishing the recommendations of the Committee on the Election of Judges to the European Court of Human Rights. This Committee interviews and evaluates the three candidates nominated by the state regarding their suitability for election. Making these recommendations public has significantly contributed to improving women’s representation by highlighting their professional qualifications, whereas hidden deals in the past often favored men candidates.
4. Still reflecting on who the Court is, we often shape our perceptions of it by assessing its case law. Although the Court is composed of individual judges, whose profiles and practices contribute to the institution’s rationality, these contributions are rarely assessed on an individual level – perhaps honoring the fact that judging is a team effort, a collective exercise. For today’s conversation, we’d like to shift focus and ask you to consider your own contributions. Angelika, looking back on your time at the Court, what do you consider your most significant contribution or legacy? And Kateřina, as you continue your journey, what do you hope your legacy will be?
Angelika Nußberger: In this regard, I have always been greatly influenced by a conversation I had with Wolfgang Hoffmann-Riem, a judge at the German Constitutional Court. He emphasised that being a good judge involves preparing good arguments to persuade your colleagues during deliberations. If you cannot convince them, you should aim for a compromise. This approach always left me with a better feeling than writing a dissent.
One case where I did dissent, which is perhaps a part of my legacy, is SAS v. France. In the dissent (written together with Helena Jäderblom), we argued that the “living together” argument was unconvincing. I was pleased to see that this argument did not resurface in subsequent cases.
Finally, I am proud of another achievement, albeit with a touch of sadness. After my term as a judge, I wrote a book on my experience at the Court and how the Court functions, published by Oxford University Press. This book was translated into Russian and published in January 2022, just before the beginning of the war and the “divorce” between Russia and Europe. I would hope that some copies of my book are still available in Russia as a legacy of a cooperation that lasted for more than two decades.
Kateřina Šimáčková: I want to express my gratitude for your dissent in SAS v. France, Angelika. I’d like to make a point here: both dissenters in that case were women, which highlights a certain sensitivity; women can deeply relate to be told what they can or cannot wear. This underscores the importance of having women on the bench, as they bring different life experiences to the table.
Regarding my legacy, I aim to convey a message to Member States. When we discuss the Court’s finding of a violation, it’s often framed as the State having “lost” a case. I believe this perspective is misleading. In reality, the State wins either way, as the outcome ultimately leads to better protections for its citizens and all individuals in its territory. That is the true aim of the Convention. It arose as a response to the horrors of World War II, with the goal of creating better States that safeguard rights, and we have achieved that.
