In Lebedeva and others v. Russia, the European Court of Human Rights (“the Court”) issued a short judgment with sweeping effects – striking out 879 potentially meritorious applications alleging Russia’s human rights violations. Many of these cases concern harrowing personal stories of Russia’s abuses. Ms Abuyeva’s son and dozens of others were killed and injured in a bombing by Russian forces in Chechnya. Mr Kuashev and Ms Bakuyeva’s son was killed for his activism after authorities repeatedly failed to investigate threats against him. In its decision, the Court ended their last hopes for justice, as well as the hopes of 1500 other applicants.
The Court decided that further examination of these cases, given their limited precedential value and Russia’s non-engagement with the Court, is not a proportionate use of resources compared to other claims. Civil society has criticised the decision. Amnesty said that it deprives victims of their “last hope of seeing justice.” Writing in the Moscow Times, two prominent Russian human rights lawyers called it “one of the most shameful decisions the ECHR has adopted in its entire existence.”
Lebedeva bridges two fundamental questions: one longstanding, the other emergent. First, how does the Court, “a victim of its own success”, efficiently manage a docket of tens of thousands of applications? Second, how can international justice institutions effectively respond to a state acting with total impunity, particularly in a time when such institutions are under unprecedented threat? In Lebedeva, the Court makes a policy judgment. Unfortunately it uses undefined criteria to explain why some cases were struck off while others remain. Justifying the decision in light of the Court’s limited resources, it strikes the wrong balance. This blog argues that it overvalued a 1% reduction in caseload while undervaluing the truth-telling value of the claims and its problematic message to Russia and beyond.
Slimming the docket
Before turning to the Court’s proportionality reasoning, we must understand what cases it decided, what cases it struck out, and what cases it retained:
i) the Court decided 600 individual applications of “marked importance” and those raising legal issues of general importance by Chamber judgments (including three decisions by the Grand Chamber);
ii) Committee formations decided thousands of applications – while the Court does not give exact numbers, they likely represent the bulk of the approximately 17,000 processed since 2022;
iii) the Court struck out 879 cases in Lebedeva, affecting a total of 1,483 individual applicants; it found that they were neither important enough, nor repetitive enough to fall into the two categories above;
iv) the Court retained “conflict-related” cases and continues to process them; according to a July update there were 6,642 pending applications against Russia – taking those struck out leaves 5,763 on the docket.
Cases of general importance and repetitive cases are well-established criteria reflecting the Court’s Priority Policy (Level II and Level V). The other distinctions drawn by the Court are new and problematic.
The Court says that it decided all cases of “marked importance” in 60 Chamber judgments and one Grand Chamber judgment across four themes: repression of political opposition, suppression of civil society as “foreign agents,” freedom of expression, and treatment of particularly vulnerable individuals. It gives examples of cases that are undeniably politically and legally important (e.g. Navalnyy v. Russia (no. 4), Novaya Gazeta and Others v. Russia) but does not provide any general definition.
Killings by Chechen security forces, the killing of a journalist, or killing and torture by Wagner soldiers, as Vaypan and Sekretareva highlight in the Moscow Times, are not cases of “marked importance” according to the Court’s reasoning. The “marked importance” distinction is problematic because the term does not appear in the Court’s policies, and according to HUDOC, this is the first and only use of the term in the case law. If anything, it seems to be invented to justify the Court’s approach in Lebedeva.
The Court’s definition of “conflict-related” is even more contentious. According to the judgment, “conflict-related cases” are individual applications associated with interstate cases, notably Georgia v. Russia and Ukraine and the Netherlands v. Russia. This excludes cases associated with Russia’s non-international armed conflict in Chechnya (see Abuyeva v. Russia, struck out). It also begs the question – which cases are conflict-related, considering that Russia’s invasion of Ukraine in 2014 and 2022 were accompanied by massive domestic repression?
Is a case concerning the death of two men with HIV in detention in occupied Crimea (retained) more conflict-related than a case of a death in a bombing in Chechnya (Abuyeva, struck out). What about a statement on Russia’s war in Ukraine in 2014 for which the applicant was sentenced to six years’ imprisonment (Gritsenko v. Russia, struck out)? On a principled level, there is no reason why cases arising from international armed conflicts (IACs) should get preferential treatment over cases from non-international armed conflicts (NIACs) or any other cases. In Lebedeva, the Court provides no reasoning explaining this distinction.
Priority debates
The Lebedeva decision should be understood in the context of a broader, longstanding debate about the Court’s docket management. In the early 2000s, after the Convention’s expansion from 10 to 47 Members, the Court was faced with a docket crisis and a backlog of over 100,000 cases. Over two decades the Court reformed its procedures, including through pilot cases, single-judge formations, and the Priority Policy mentioned above. Some commentators criticised the reforms for reducing the quality of individuals’ access to justice, but most accepted it as a necessary step given the caseload (see: here, here).
The issue here is not prioritisation per se, but rather that the Court seems to invent two criteria out of the blue and applies them to the detriment of almost 1,500 applicants. In Burmych and others v. Ukraine, a mass strike-out case cited extensively in Lebedeva, dissenting judges criticised the majority for inventing new criteria that went against individual rights and produced arbitrary results. Commentators questioned the breadth of the Article 37(1)(c) power claimed by the majority, arguing that Member States repeatedly rejected such an approach to docket control.
Prioritisation criteria adopted by the Court acting unilaterally were never envisaged to cull hundreds of possibly meritorious complaints, denying a last chance at justice. In Lebedeva, the Court acts beyond its mandate and exacerbates the individual justice concerns raised by critics of the reform process. The results are arbitrary: it is difficult to find a principled approach that explains why certain cases against Russia were struck off while others remain.
Efficiency and individual claims
According to the Court, applying Article 37(1)(c), the Lebedeva cases are a disproportionate burden on the Court in relation to its objectives in the individual cases and vis-à-vis the broader Convention system. There are two parts to this balancing act: efficiency gains on the one hand, and the benefits of examining these cases on the other.
The Court tells us that further examination of the Lebedeva cases would require “significant judicial resources.” The 879 struck out in Lebedeva represent 1.6% of its total caseload and 13% of its caseload against Russia. Moreover, we know that the struck-out cases are not highly complex as a matter of law – the Court says that they do not call for the development or clarification of the Court’s case-law. I will not pretend to know more about the Court’s mechanics than its judges. Publicly available statistics, however, raise questions about the stated efficiency gains.
In the Court’s view, the value of each case to individual claimants does not justify further resource allocation. A major factor in this calculus is that Russia will almost certainly not engage with these cases or provide compensation to victims. While it recognises the “declaratory value” of a judgment in these circumstances, it goes on to make a curious finding that is best reproduced in full:
- […] While the Court does not overlook the individual interest which each applicant has in obtaining an adjudication of his or her complaints, it is however unable to identify any commensurate Convention benefit, whether for the applicants, individually or collectively, or for the development and effective functioning of the Convention system, capable of justifying such an allocation of resources.
What is a “commensurate Convention benefit” for the “applicants individually or collectively?” The Court mentions declaratory value and obtaining adjudication of the complaints – those are clearly Convention benefits. But it seems to suggest that the only individual or collective benefit commensurate to further resource use is the payment of compensation.
Working with survivors of mass atrocities, including representing them in strategic litigation at human rights mechanisms, I have first-hand knowledge of how important the truth-telling, expressive, and participatory functions of these cases can be — often more so than monetary compensation. In my experience, this is especially true in right to life cases where families have lost loved ones (many were struck out in Lebedeva). An empirical study on Turkish cases at the Court showed that survivors value the recognition of the injustice inflicted by the violating State more than any monetary compensation.
Overall, the Court’s assessment of the victims’ interests is short and seriously flawed. It does not engage with the notion that declaratory value may be more important than compensation or expand on what “declaratory value” can mean for victims. While recognising Russia’s “unprecedented” withdrawal from the Convention, it fails to properly grapple with the implication – this was the victims’ last chance at any justice.
“Exceptional circumstances”
Beyond individual claimants, the Court is concerned with the Convention system generally. Citing Burmych and Turan and others v. Turkey, the Court finds that under Article 37(1)(c) it can, as a matter of judicial policy, dispense with individual consideration of claims to ensure “the long-term effectiveness of the Convention.” The Court acknowledges two major differences between these cases and Lebedeva. First, that both violating states remained members of the Convention and were under clear obligations to cooperate with its institutions. Second, that the applicants’ interests were protected in some way (by the Committee of Ministers in Burmych, one claim was satisfied for all Turan applicants).
These differences are colossal and undermine the Court’s assessment. In Burmych, the majority believed that the interests of the applicants were “more appropriately protected in the execution process” (dissenters strenuously disagreed). Here, there is no possible disagreement – in Lebedeva, non-satisfaction is a certainty. The victims in these cases have had no recognition of their harms, will never get it, and there will be no follow-up from other Convention institutions.
The Court is at pains to emphasise that Russia’s withdrawal is not the norm, repeating five times that these are “exceptional circumstances.” But it does not entertain the idea that these circumstances pull in the opposite direction – namely continued examination of the Lebedeva cases despite Russia’s non-engagement. In Turan, Judge Kūris, partially dissenting, worried that the judgment sent “a signal that a member State can escape responsibility for violating the Convention en masse.”
Exceptional circumstances may merit an exceptional response. Were there truly no cases in Lebedeva suitable for a Committee decision, given the wealth of existing jurisprudence? Could the Court have led with a strong judgment on Russia’s systemic non-participation? When faced with an unprecedented volume and severity of abuses and total impunity from the violating State, the long-term effectiveness of the Convention is best ensured with a comprehensive, unequivocal response. By denying almost 1,500 people their last chance at justice, the Court sent the wrong message to Russia and the 46 remaining Members.
The signalling issue is compounded by the use of arbitrary criteria and the failure to properly evaluate victims’ individual interests, as argued above. If the Court is exceptionally letting a mass human rights abuser off the hook in 879 cases, its reasoning must be airtight.
Holding Russia accountable is tremendously difficult – its size sometimes makes it impervious to international pressure. This is a reason to try harder and expend more resources, not less. In this case, the long-term effectiveness of the Convention would have been better served with an absolute commitment to delivering (even symbolic) justice to every victim and sending Russia the signal that all its abuses will be accounted for.