Friendly Settlement before the European Court of Human Rights

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 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.

Friendly settlement has become an integral part of every case before the European Court of Human Rights.  Since 2019, every case coming to the Court has to go through an initial 12-week ‘friendly settlement phase’, followed by a 12-week contentious phase. Parties are strongly encouraged to settle cases before any consideration is given to the content of the case or the issues it raises. Though the friendly settlement process is not new, it has thus far been used mostly for the settlement of routine, repetitive cases. The move to put all cases coming to the Court through a mandatory friendly settlement phase promises to change the architecture of dispute settlement before the ECtHR. By changing the normal trajectory of a case through the ECtHR machinery, it seeks to nudge individual victims towards settlement, accelerate proceedings in less contentious cases and free up time for the Court to dedicate to cases raising new issues.

States have enthusiastically welcomed these changes as reducing the workload of the Court and allowing them to ‘establish a culture of resolving human rights [disputes] inside the country, so that people are no longer forced to prove their truth abroad.’[3] Some applicants’ counsel also appear to be excited. In an aptly titled ‘Let’s be friends instead’, one such lawyer notes that the practice will ‘not affect the level of human rights protection itself, since the state concerned acknowledges the prejudice caused and it will pay compensation as well. In our view, the lack of a formal meritorious judgement will be more than compensated by the fact that our case ends much sooner.’[4] But not everyone shares in the excitement. In a revealing blog, Leach and Jamrjidze argue that the Court’s increasing reliance on friendly settlements and unilateral declarations to resolve its heavy workload puts more strain on the follow-up enforcement phase and on the Committee of Ministers as the body supervising compliance.[5] If agreements between individual victims and states can bypass the evaluation of the Court, their enforcement surely has to be appropriately scrutinised within the Council of Europe. Leach and Jamrijdze in this context worry that the role of the Committee in assessing the enforcement of friendly settlements has been limited or even non-existent and that the possibility to have cases restored before the Court if enforcement is not forthcoming has not proved successful. If friendly settlements and unilateral declarations become the norm, the new regime may enable states to make promises that then remain unfulfilled.

This article aims to contribute to the examination of the friendly settlement procedure before the ECtHR by raising concerns about the current operation and impact of settlements on the individual victim. In light of the greater reliance placed on friendly settlements in the new framework, it is important to understand precisely how the process of settlement affects individuals. For example, the label ‘friendly’ appears to suggest a participatory process in which both state and the applicant can air grievances, outline expectations, discuss potential outcomes and agree on a compromise remedy. However, already in 1980s Owen Fiss noted that this was misleading. In a powerful article entitled Against Settlement he took issue with the fact that when settlement occurs, it often takes place between parties of unequal power, eg state or government officials and a member of racial minority over alleged brutality or injured workers suing a large corporation over work-related injuries.[6] In these unequal relationships consent is often coerced, with the weaker party unable to really say ‘no’. As he puts it: ‘first, the poorer party may be less able to amass and analyse the information needed to predict the outcome of the litigation, and thus be disadvantaged in the bargaining process. Second, he may need the damages he seeks immediately and thus be induced to settle as a way of accelerating payment… Third, the poorer party might be forced to settle because he does not have the resources to finance the litigation…’

Fiss’ writing addressed settlements in domestic civil proceedings, between parties of equal standing. In this article, I explore how some of his concerns apply to the process of settlement at international level, where the negotiation takes place between the state that enjoys unlimited power, resources and access to information and an individual victim. In this context, I highlight especially the fact that settlements in the ECtHR system are not conducted by judges, who consider negotiations ‘incompatible’ with the requirement of impartiality of their office and stay away from settlements ‘as a matter of principle’. Instead, friendly settlements take place via the Registry, the secretariat of the Court, who acts as a third-party mediator to facilitate and propose the suggested terms of settlement. If in the early years of friendly settlements, Registry’s role had mostly been limited to a ‘postal box’, where the state and the applicant would send their settlement proposals and from which the Registry as a ‘messenger’ would then forward the proposals to the other party, today, the Registry actively shapes the settlement process and in turn, the number, scope and content of settlements. Although the Registry is unelected and unaccountable to states, its active presence promises to bring balance in the inherently unequal relationship between the victim and the state. But the active involvement of the Registry also raises questions about its motives in the settlement process.

In this article, I therefore seek to better understand the settlement process adopted by the European Court of Human Rights and the changes that were instituted in 2010, when the practice of settling became more prominent and the Registry took on a more active role. In the article, I empirically analyse all of the cases reported in HUDOC, which were settled between 1980s to today (10,500 settled cases). This quantitative analysis is complemented with interviews with practitioners, members of the Registry as well as my own experience having worked at the Court. Building on this evidence, the article seeks to examine how the position of three key actors in the settlement process has changed through this time: the applicant as the aggrieved party, the state as the potential violator, and the Registry as the mediator between the two. Since the new approach promises to redesign the normal path of applications – and thus victims – coming to the Court and put the settlement centre stage, the article addresses two main questions: first, how the Registry works to bring the parties together, and second, what impact the settlement system and the involvement of the Registry has on the victim and the state. To answer these questions, I draw in particular on insights from behavioural economics and psychology to understand how different processes and interactions affect the people involved. In particular, I wish to understand how applicants’ cognitive biases might affect their interaction with international institutions. Through this behavioural lens, I therefore look at the new procedure adopted by the ECtHR and investigate in particular to what extent the inherent imbalance between the applicant and the state is addressed through the active involvement of the Registry.