Journalists and law professors have recently discovered that the European Court of Human Rights (ECHR) has suspended access to its files and decisions, raising concern about the Court’s stance on open justice and impartiality prevention measures. Law Professor Jurij Toplak (University of Maribor, Slovenia, and Visiting Professor at Fordham Law School, New York) says it is an extreme and illegal move.
The ECHR is Europe’s top court, covering 47 countries, including the UK, all 27 EU member states, and 19 other countries. Since around 10 March (the exact date is unclear as the ECHR has not communicated this publicly), those asking for copies of documents have received only a response stating that “on account of the Covid-19 pandemic and until further notice all file consultations have been suspended. However, Jurij Toplak states: “After allowing access to its single-judge decisions for decades and after sending applications out for several months, the Court’s termination of access in March 2021 due to the pandemic seems unjustified. The pandemic has not worsened in March 2021.
No court should be allowed to hide its decisions from the public. The files are public documents. This means that the ECHR has to allow the public to see them. In no other circumstances in the past has the court suspended its services. I believe there is something else at play. It may be a tendency to limit the transparency. But this move, however, is extreme. It is also illegal. The Convention makes it clear that the public should have access to files.
Several political leaders worldwide have justified their dubious decisions with pandemic. I would have never expected that from the ECHR. Further context from Jurij Toplak: The Court has stated in its Fazliyski and Pretto judgments that the “public character of proceedings before judicial bodies protects litigants against the administration of justice in secret with no public scrutiny and constitutes a basic safeguard against arbitrariness” and strengthens the public’s confidence in the courts. Numerous authors and observers, including Transparency International, have stressed that transparency of court proceedings is key to the public perception of the judiciary and a tool against corruption.
Each court’s transparency is tested not in cases when staff are willing to disclose documents but when they are hiding them. To protect its integrity, the Court needs rules and safeguards that prevent the staff from acting arbitrarily when responding to access information requests. A prominent federal appeals judge Roger Miner famously wrote that criticism of the courts is not merely a right but every lawyer’s duty. The less the criticism there is, the less the courts improve. It is high time for European lawyers to raise their voices against dubious case management practices and secrecy of judicial decisions and files
