The bureaucratic court? Administrative justice and the admissibility decision-making of the European Court of Human Rights

Thesis

How should the European Court of Human Rights “decide what cases to decide”? This thesis examines the procedural justice of the admissibility decision-making of the Strasbourg court. Reappraising the “individual vs constitutional” debate which continues to dominate the Convention literature, this thesis draws on socio-legal administrative justice theory to analyse the complexities, discrepancies and tensions which have characterised debates about how Strasbourg’s docket-filtering should be organised. Having established the relevance and force of this new conceptual framework, this thesis identifies four distinct and competitive conceptions of how the Court’s docket-filtering should be designed: the Strasbourg as court, constitutional court, bureaucracy and tribunal models. I show that the ongoing debates about admissibility reform and institutional design in both the Council of Europe and the academy have been premised on neither a rigorous empirical analysis of the Court’s working practices, nor a detailed analysis of its admissibility jurisprudence.

This thesis addresses these lacunae. Drawing on an empirical analysis of the evolving text of the Convention, Council of Europe policy papers, evidence of the Court’s working practices, and a critical examination of its published admissibility decisions, this thesis demonstrates that the orthodox, doctrinal analysis of the Court’s admissibility decision-making misunderstands and misrepresents most of the Court’s working practices. The dominant voice in the literature contends that Strasbourg has now become a “constitutional court.” My data shows that while judges retain a superficial responsibility for decision-making at the threshold in Strasbourg, in practice, the Court’s Registry has quietly accrued greater and greater responsibility for the docket while judicial participation in decision-making has been marginalised. The law on the books, it is shown, remains a poor guide to how the law operates in practice. These socio-legal insights allow a radical reappraisal of our understanding of the Court, and the theoretical and methodological limits of the existing literature on the Court and the law of the Convention.

Authors: Tickell, AS

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: Admissibility Decision Making; Administrative Justice; International Law; European Convention on Human Rights; Law reform
• Subjects: Law