Considering the specific characteristics of the challenges before the ECtHR, there is clearly a fundamental problem of implementation. After 1989, the Council of Europe underwent enormous and simultaneous changes. The organization was enlarged to include a number of new states many of which were confronted with serious human rights issues. At the same time the scope of the protection of human rights was being enlarged. The jurisdiction of the ECtHR became mandatory. Taken together these changes provoked a kind of perfect legal storm. The heterogeneity (political, legal, economic, linguistic…) of the State Parties is clearly much greater in the ECHR system than in the EU. Additionally, the ECHR lacks efficient sanction mechanisms. The “pathology” of some State Parties’ behaviour can thus be much greater, and may provoke huge waves of applications. Judgments may be implemented weakly, and the saga never stops. There can be no complete solution without a better implication of State Parties in implementation of the ECtHR’s jurisprudence. Hence the impor- tance of the Brussels Conference conclusions, of the enhancement of the role of the Committee of Ministers, and of the development of dialogue between the ECtHR and the courts of the State Parties.
From 2000 to 2012, the number of applications before the ECtHR rose from 10,000 to 65,000. During the same period, the number of pending applications went from 16,000 to 162,000. Of course, the repetitive nature of many applications in part represented an artificial inflation of numbers. This evolution was nevertheless an enormous institutional shock. What the ECtHR has managed to do in this extremely difficult context is most impressive. A catalogue of the examined and adopted measures during the last 15 years could provide a classic example of judicial reform in all State Parties.
The ECtHR is not yet out of the woods, but it has made essential progress. Some systemic problems remain and recent developments in Russia, Ukraine and Turkey, for example, are unlikely to reduce them. Important structural reforms may yet be needed, possibly encompassing a greater role for the Council of Ministers, a new
filtering system, and some technical instruments to allow the ECtHR to concentrate on essential legal challenges.
Furthermore, there also remains a strong potential tension between access to justice and judicial efficiency. The fundamental question is simple: how much are the authorities prepared to pay to provide a system for 800 million people where every- body, without legal assistance, can sue any Member State for any violation of human rights? This admirable concept cannot be sustained without at the very least corre- sponding financial resources, if not occasional concessions of state sovereignty. Until now, the system has managed to adapt remarkably well. It has strongly improved its performance while compromising very little on its essential objectives.
How was this done? The process deserves a lot of attention. There was a lot of technical preparation. A good reform in depth first requires a good reflection in depth. This pays in the long term. Such a reflection allows for the development of a global and long term strategy. There is otherwise a great risk of taking short term decisions, the global and long term consequences of which are not fully understood. Consultation was also very broad, and transparency very great. This also pays in the long term. It improves the quality of reflection. Autocratic managers usually see debates as a loss of time. However, especially for complex reforms, it is the absence of debate which at the end leads to a loss of time. Managerial measures were imple- mented before there was any large increase of personnel. This is essential, since huge increases of personnel can impede the efficacy of managerial measures. Additionally, such increases of personnel as were implemented were progressive and targeted. This is also essential, since it allows one to draw lessons from experience. Managerial reforms take time, trial and error, and adjustments. Some increases of personnel were also flexible in that they were targeted and temporary. The Registry was expanded while the question of any increase of the number of judges was put on the backburner. This also was essential, because in an international context it is most difficult to provide for a limited increase in the number of judges (let alone a temporary increase). Furthermore, increasing the number of judges develops the most unstable part of the machine, which is not propicious for long term produc- tivity198.
Had the ECtHR followed after 2000 the counter-example of the CJEU, it would be now saddled with 94 human rights judges, which would be much more difficult to coordinate, and would lead to higher costs, greater inflexibility and a more unstable structure.
198 For the sake of clarity, this was precisely what had been recommended by the author for the reform of the
EU courts in 2011: see The reform of EU courts (I), § 3. One does not need to be a rocket scientist to draw such basic conclusions. What is amazing is the total inability of all EU institutions involved to simply open such a reflection process.