Against Settlement Before the European Court of Human Rights
iCourts Working Paper Series, No. 247
Forthcoming International Journal of Constitutional Law 2022.
41 Pages Posted: 18 May 2021 Last revised: 15 Nov 2021
Date Written: May 17, 2021
Even though they represent almost 50% of all reported cases before the European Court of Human Rights, settlements of human rights violations escape scholars’ attention. Whilst victims are increasingly expected to resolve their disputes amicably, it is unclear whether applicants will be better off accepting settlement offers rather than proceeding to litigation. The paper charts the practice of friendly settlements before the Court from 1980s to today, mapping a shift in approach from seeking bilateral solutions to the proactive role of the Registry as mediator encouraging states and applicants to settle their cases to relieve the Court of the heavy workload. The empirical quantitative and qualitative study of 10,500 cases reveals how strategies adopted by the Registry – from procedural changes to how and when consent is given to settlement, to the framing of settlement offers and a close relationship with representatives of the respondent state – have favoured the most frequent violators of the Convention and sidelined the interests of the applicant. The analysis uncovers that the imbalance between parties and lack of enforcement are very much present in the ECtHR settlement system and that the active role of the Registry has reinforced, rather than redressed these concerns. The findings expose the dangers of pursuing en masse settlement in the human rights context and raise concerns about achieving long-term justice for victims of human rights violations through other means than adjudication.
Keywords: European Court of Human Rights, friendly settlement, human rights, state, behavioural approaches, mediator, registry, statistical analysis, empirical studies, quantitative, qualitative
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