Is Justice really blind? Analysing procedural costs at the European Court of Human Rights

The usual representation of the deity Justicia is that of a blindfolded women – promising an unbiased verdict towards everyone, literally without “looking” at the persons reputation. But does this desirable view on jurisdiction really hold true? Or are there other factors  - for instance monetary wealth – that impact on the justice that is done to you? At the Max Planck Institute Luxembourg for Procedural Law, Ezgi Özlü researches how procedural costs affect the type of cases brought before the European Court of Human Rights (also known as the Strasbourg Court). The Strasbourg Court is open to everyone following the exhaustion of usual judicial requests in domestic systems. It is often seen as the last resort to meet human rights violations. But like any court, Strasbourg Court inevitably involves procedural costs. Ezgi Özlü wants to know: How does the Strasbourg Court’s practice on procedural costs affect access to this Court’s premises? Does its practice differ depending on the nature of the case, the characteristics of the applicants or representatives? What is the Court’s position on legal aid awards available for applicants and the reimbursement of procedural costs?  Her work will help in the search for a balance between guaranteeing effective access to justice, Strasbourg Court’s judicial efficiency and case management policies.

Ezgi, can everyone, irrespective of his or her bank account balance demand justice at the European Court of Human Rights?

In principle, yes. There are no fees at the European Court of Human Rights, and you do not need to be represented by a lawyer while submitting your application. These seem to make an application essentially free of charge. But reality looks different.

In what way?

Before bringing a case to the Strasbourg Court, you need to exhaust the domestic remedies, so some costs already incur in your home country at the domestic proceedings. The costs at the domestic proceedings might differ very much, depending on the country. Also, at the Strasbourg Court, when your case is communicated to the respondent State, you do need to be represented by a lawyer. So, you have lawyer fees to pay. Lawyer fees are quite expensive in some countries, for example, in the United Kingdom. You might also need to pay additional costs. For instance, to attend a hearing in the Court, you need to pay your lawyer’s travel and subsistence expenses. You might need to pay expenses of an expert opinion as well.

Is there any support from the Strasbourg Court itself?

There is a legal aid mechanism, and if it finds a beach of the European Convention of Human Rights, the Court can award reimbursement of costs and expenses. This is what my PhD project looks at. I want to know: How does the Court assess the criteria for costs and expenses, and legal aid awards? Does the Court’s practice on procedural costs differ depending on the nature of the case, the characteristics of the applicants or representatives?

How does your work look like in practice? Do you participate in trials?

My work adopts an empirical method together with theoretical and comparative approaches. I analyse the Court’s judgements, archives of the Court, the Committee of Ministers and Council of Europe. I have also conducted interviews with 25 persons. These persons include the Strasbourg Court’s (former) Judges, lawyers working at the Court’s Registry, and lawyers working at the Execution Department of the Court. I also interviewed applicant representatives working with prominent NGOs and advocates from small firms. Through this, I study the perspective of the Court as well as the applicant representatives and analyse the relationship between different dynamics.

Can you share some of your results?

The costs are in fact a crucial factor for access to justice. Strasbourg Court’s legal aid mechanism is often not enough to cover all the procedural costs. The Court generally adopts a very strict approach when awarding costs and expenses. This makes the awards significantly low, except for the cases that the Court finds complex. Even for complex cases, the sums are generally lower than what applicant representative claims. For applicants’ representatives, especially for ‘one-shotters’[1], it is often difficult to understand which cases are complex. Furthermore, a case that seems simple at first sight can become surprisingly complex when the Court acts strategically and renders a ‘leading judgment’; that is a principle judgment that applies to future cases. The Court however, does not take into account the particular situation in each case, representative or applicant.

So money still matters?

Money still helps to get a better representation; a significant number of people may not have the chance to defend their rights properly at the Court. The Court’s policy on costs may discourage potential applicants from waiting their voice to be heard by Strasbourg Judges. One reason for the Court practice of costs is related to the budgetary constraints that the Strasbourg mechanism has been facing for a long time. In 2021, 44,250 applications were allocated to a judicial formation[2]. However, only 640 people are working at the Court Registry to deal with all these applications. This number is just not enough. Besides, an important number of cases are still pending because some States refuse to comply with the Court’s judgments. So the focus should be on compliance with the judgments and an increase of the Council of Europe’s budget instead of setting barriers to the victims of human rights breaches such as financial constraints.

Short CV

Ezgi Özlü is a Research Fellow at the Max Planck Institute Luxembourg (Department of International Law and Dispute Resolution) and a Ph.D. candidate at the University of Strasbourg. Her research focuses on how the European Court of Human Rights’ practice on procedural costs affects the nature of cases brought before its premises. Before joining the Max Planck Institute, she worked as a Consultant at the Department for the Execution of Judgments at the European Court of Human Rights and as a Research and Teaching Assistant in constitutional law. Admitted to Istanbul Bar, she holds a Law degree and two LLM’s, one in Public Law and the other in Human Rights Law.